Dawes v. Wheeler

Supreme Court of New Jersey

Dawes v. Wheeler

45 N.J.L. 67

DecidedFebruary 15, 1883

StatusPublished

This text of 45 N.J.L. 67 (Dawes v. Wheeler) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dawes v. Wheeler, 45 N.J.L. 67 (N.J. 1883).

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Opinion

The opinion of the court was delivered by

Depue, J.

On a bill filed for the foreclosure of a mortgage, a final decree for sale and foreclosure was taken, and execution issued thereon, by virtue of which a sale was made of the mortgaged premises. The property sold for less than the sum due on the decree. A statement of sale was made by the sheriff, showing the amount of the sale and the balance due on the decree. On this statement of the case, without any decree of the Chancellor for the deficiency, the complainant filed in the office of the clerk *f this court an abstract of the original decree of foreclosure, in order to obtain for it the force and effect of a judgment of this court under the provisions of the fifty-sixth section of the Chancery act. JRev.,p. 113.

The statute under which this proceeding was taken provides for making orders and decrees of the Court of Chancery in effect judgments of this court, only in cases where the order or decree is such that a sum of money.is ordered to be paid by one person to another, and the order or decree is in substance and form in personam. A suit for the foreclosure of a mortgage and the sale of the mortgaged premises is a proceeding in rem. As an incident to such a suit in the Court of Chancery, the Chancellor is empowered by statute, on a bill properly framed, to make a decree for the payment of the excess of the mortgage debt over the net proceeds of the sale by any of the parties to the foreclosure suit who may be liable either at law or in equity for the payment of the same. Rev., ¶. 118, § 76. But until such a decree be made by the Chancellor, there is no order or decree for the payment of money such as is required by the statute under which the abstract in this case was filed. Bell v. Gilmore, 10 C. E. Green 104; Mutual Life Ins. Co. v. Southard, Id. 337; Bank of Rochester v. Emerson, 10 Paige 359; 2 Jones on Mortgages, §§ 1709-1720.

The jurisdiction of this court in the premises is founded on [69]*69a decree in personam for the payment of a definite sum made in the Court of Chancery. The proceeding is wholly statutory, and, if the conditions of the statute be not complied with, is coram nonjudice. Tasto v. Klopping, 14 Vroom 448.

The entry of the judgment made by the clerk is vacated, with costs.

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The opinion of the court was delivered by

Depue, J.

On a bill filed for the foreclosure of a mortgage, a final decree for sale and foreclosure was taken, and execution issued thereon, by virtue of which a sale was made of the mortgaged premises. The property sold for less than the sum due on the decree. A statement of sale was made by the sheriff, showing the amount of the sale and the balance due on the decree. On this statement of the case, without any decree of the Chancellor for the deficiency, the complainant filed in the office of the clerk *f this court an abstract of the original decree of foreclosure, in order to obtain for it the force and effect of a judgment of this court under the provisions of the fifty-sixth section of the Chancery act. JRev.,p. 113.

The statute under which this proceeding was taken provides for making orders and decrees of the Court of Chancery in effect judgments of this court, only in cases where the order or decree is such that a sum of money.is ordered to be paid by one person to another, and the order or decree is in substance and form in personam. A suit for the foreclosure of a mortgage and the sale of the mortgaged premises is a proceeding in rem. As an incident to such a suit in the Court of Chancery, the Chancellor is empowered by statute, on a bill properly framed, to make a decree for the payment of the excess of the mortgage debt over the net proceeds of the sale by any of the parties to the foreclosure suit who may be liable either at law or in equity for the payment of the same. Rev., ¶. 118, § 76. But until such a decree be made by the Chancellor, there is no order or decree for the payment of money such as is required by the statute under which the abstract in this case was filed. Bell v. Gilmore, 10 C. E. Green 104; Mutual Life Ins. Co. v. Southard, Id. 337; Bank of Rochester v. Emerson, 10 Paige 359; 2 Jones on Mortgages, §§ 1709-1720.

The jurisdiction of this court in the premises is founded on [69]*69a decree in personam for the payment of a definite sum made in the Court of Chancery. The proceeding is wholly statutory, and, if the conditions of the statute be not complied with, is coram nonjudice. Tasto v. Klopping, 14 Vroom 448.

The entry of the judgment made by the clerk is vacated, with costs.

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Bluebook (online)

45 N.J.L. 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawes-v-wheeler-nj-1883.

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