Keegan v. Carhart

147 A. 841, 106 N.J.L. 30, 21 Gummere 30, 1929 N.J. Sup. Ct. LEXIS 443

• Court: Supreme Court of New Jersey
• Decided: November 30, 1929
• Status: Published

Opinion

The opinion of the court was delivered by

Kalisch, J.

The action in the above entitled cause was commenced by summons, against Joseph Treaey and Teddy McKegney, two of the defendants, and by capias ad respondendum against Joseph Carhart, the latter being held to bail by an order of a Supreme Court commissioner.

■ It is moved before me to set the order aside upon two grounds: (1) That the affidavits fail to set forth facts tending to show the commission of an outrageous assault and battery. (2) That the affidavits do not show facts warranting the holding of the defendant Carhart to bail.

As to the first ground, it is quite apparent from a plain reading of the affidavits that they disclose facts showing the commission of an outrageous assault and battery.

Under the second ground, it is argued on behalf of the defendant Carhart that even though the affidavits tend to show the commission of an outrageous assault and battery, or mayhem, nevertheless,, it must appear, aliunde, some special cause, for instance, non-residence of the defendant, in order to make a proper basis for the issuance of a capias ad respondendum, in lieu of a summons.

I cannot discern anything in the terms of the statute, dealing with the subject, which properly supports such contention. See Weart v. Strouse, 38 N. J. L. 184; Logan v. Lawshe, 62 Id. 567; Hufty v. Wilson, 78 Id. 241, which cases are to the contrary.

In Haglich v. Ceverlere, 105 N. J. L. 521, the court said: “The necessary statutory grounds to support an order for bail are firstly, where the action is founded upon a seduction or an outrageous battery, or mayhem; or, secondly, where the action is for the recovery of damages for the misconduct or neglect of a public officer; or, thirdly, where the proof establishes special cause as heretofore for holding the defendant to bail.”

The legislature has thus declared in explicit language that the commission of seduction, outrageous assault and battery, or mayhem, shall be a sufficient basis for the issuance of a capias ad respondendum, leaving the commission of all other wrongs, except such as are provided for in the statute, subject to the issuance of a capias ad respondendum, and only in such cases where the proof establishes special cause, as heretofore.

The motion to set aside the order to hold to bail is denied.