Den ex dem. Hancock v. Fen

24 N.J.L. 544

• Court: Supreme Court of New Jersey
• Decided: June 15, 1854
• Status: Published

Opinion

Potts, J.

The parties who are here disclaiming all right, title, interest, possession and right of possession in the premises, may enter into the common consent rule with Aiken, or not, at their pleasure. If they do not join, judgment will be entered against the casual ejector, with the usual stay of execution until the suit against Aiken is determined. They are not defendants in the cause. A judgment by default against Richard Een cannot affect them. It will not render them liable for costs. Costs could not be recovered against them except on an action for mesne profits, and then only in case they are proved to have had possession, which must be established by evidence. The judgment against Een would be no evidence either that they claimed title or had possession of the premises. Adams on Eject. 391; Rules of Sup. Court, Eject.

The objection of Aiken’s counsel is equivalent to an application to have the names of Irick and the Earls stricken out of the notice. But the plaintiff in ejectment may give notice to defend to as many persons as he chooses — he does it at his peril. They can only be made parties to the suit by their own act — the notice does not make them so. All the judgment by default does, is to enable the plaintiff to turn them out, as well as the party who defends, if they are actually found to be in possession when the execution comes— and they cannot object to this. If the court should undertake to strike out the names of parties served with notice, upon their ex parte representations that they have no interest, and ought not to have been notified, it might lead to mischievous results. There is no such practice.

Ogden, J., concurred.