Flaherty v. Pack

62 A. 269, 73 N.J.L. 103, 44 Vroom 103, 1905 N.J. Sup. Ct. LEXIS 35

• Court: Supreme Court of New Jersey
• Decided: November 13, 1905
• Status: Published

Opinion

The opinion of the court was delivered by

Dixon, J.

In a case commenced by attachment in the District Court of Atlantic City the plaintiff, on September 17th, 1903, obtained judgment, after a hearing, without the defendants having entered an appearance to the action under sections 71 and 72 of the District Court act (Pamph. L. 1898, p. 556). In December, 1904, the defendants moved to opemthe judgment so that a new trial might be had, and on January 5th, 1905, the court made an order granting the motion. This order the prosecutor seeks to have set aside for lack of authority in the court to make it.

The power of District Courts to grant new trials is derived from, and therefore limited by, the seventeenth section of the statute above cited, which enacts that “in every case tried in any of said courts the judge may * * * order a new trial * * * provided that application for such new trial, except where the said application is based on newty-discovered evidence, shall be made within thirty days after judgment.”

In the present case the application on which the new trial was ordered was not based on newty-discovered evidence, and assuming, without deciding, that the hearing was a trial within the intent of the statute, the application was not made in time to authorize its allowance.

The fact that a previous application had been made in time did not alter the legal situation. When that application was, on April 14th, 1904, formally and finally overruled, the power of the court to grant a new trial was exhausted unless newlvdiscovered evidence was presented.

The order under review must be set aside, with costs.