Kemeny v. Wentz

147 A. 587, 105 N.J. Eq. 296, 4 Backes 296, 1929 N.J. Ch. LEXIS 35

Opinion

The complainant, a judgment creditor, filed his bill for a statutory discovery in aid of execution of his judgment at law. An order was made that the judgment debtor make discovery before a master. The bill also specifically charges assets of the debtor in the hands of his wife, who, by her answer, claims it as her own.

The motion to strike the wife's answer as sham is based upon testimony taken before the master. The testimony is not of that satisfactory character to warrant denying the wife a hearing. The motion is denied.

The motion to strike the counter-claim of the debtor, in which he assails the judgment at law, is allowed. The facts alleged do not disclose any equities justifying interference by this court with the enforcement of the judgment.

The motion to compel the judgment debtor to give a fuller answer must be denied. Complainants ordinarily have the right to a full discovery by answer, but the statute under which the complainant seeks relief provides a substitute. And so is the practice, that the debtor make oral discovery before a master, and upon disclosure of property belonging to the debtor, under his control, the court may order him to pay it over to a receiver. As to property claimed to be of the debtor but in the hands of another who lays claim to it in his own right, ownership must be tried on final hearing before delivery to a receiver may be ordered. The court, however, may, in a proper case, order the property delivered to a receiver pendente lite. New JerseyLumber Co. v. Ryan, 57 N.J. Eq. 330.