Levine v. Schwartz

Supreme Court of New Jersey

Levine v. Schwartz

92 A. 274, 86 N.J.L. 476, 1 Gummere 476, 1914 N.J. Sup. Ct. LEXIS 20

DecidedNovember 6, 1914

StatusPublished

This text of 92 A. 274 (Levine v. Schwartz) 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

Levine v. Schwartz, 92 A. 274, 86 N.J.L. 476, 1 Gummere 476, 1914 N.J. Sup. Ct. LEXIS 20 (N.J. 1914).

Pincite

Opinion

The opinion of the court was delivered by

Parker, J.

The writ brings up for review the propriety of the action of the District Court in opening a judgment entered by default against the defendant in a mechanics'" lien case and awarding a new trial. The precise question presented is whether in such a suit the District Court has jurisdiction to grant a new trial after thirty days have elapsed from the date of the original judgment; and the solution of this question depends on whether the District Court practice in mechanics’ lien cases is to be regulated at such a juncture by the District Court act or by the Practice act.

By section 17 of the District Court act (Comp. Stat., p. 1959) it is provided that—

“In every case tried in any of said courts the judge ma}’, if he sees fit, order a new trial to be had upon such terms as he shall think reasonable, and in the meantime stay proceédings, provided that application for such new trial, except where the [477]*477said application is based upon newly-discovered evidence, shall l>e made within thirty days after judgment.”

Consequently, it is plain that unless some other statutory provision takes precedence, the jurisdiction of the District Court to grant a new trial in any case before it is limited to the thirty days specified.

The defendant presented meritorious grounds for the opening of the judgment and relied upon section 68 of the District Court act (Comp. Stat, p. 1977), which provides that— “The practice of the Circuit Courts, in so far as applicable, shall apply to District Courts, excepting, however, in cases whore there may he some express provision, of law providing otherwise;” and claimed that so far as related to mechanics’ lien suits, section 11? of the Practice act of 1903 (Comp. Stat, p. 4087) was applicable. That section reads as follows:

“If in any action judgment shall pass against either party by reason of the failure of the attorney of such party to file any proper pleading, the court or a judge shall on application within one year after the entry of such judgment, open said judgment and permit a proper pleading to be filed upon terms, if in the opinion of the court or judge injury or wrong has resulted or may result from such failure.”

The judge took this view and held that as the recent legislation conferring upon the District Courts the power to take cognizance of mechanics’ lien suits, transferred to them for the purposes of convenience, a jurisdiction theretofore exercised solely by the Circuit Courts, which were regulated by the Practice act, the legislative intent was that that act where applicable should control District Court practice in mechanics’ lien cases, and that in consequence he was entitled to grant a new trial under section 11? of the Practice act. This, we ihink, was erroneous, for the reason that by the express terms of section 83 of the Mechanics’ Lien act (Comp, Stat., p. 3307, as amended by Pamph. L. 1912, p. 470) it is provided that “when the suit is brought in a District Court, the practice shall be as nearly as possible the same as now provided or may hereafter be provided by law in District Courts in actions on cojxtraet.”

[478]*478The meaning of this language seems to .he perfectly plain, and there can be no question whatever but that by the practice of District Courts in actions on contract, a new trial cannot be granted after thirty days. Rosner v. Cohn, 81 N. J. L. 343.

The .order opening the judgment and granting a new trial will therefore be set aside, with costs.

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The opinion of the court was delivered by

Parker, J.

The writ brings up for review the propriety of the action of the District Court in opening a judgment entered by default against the defendant in a mechanics'" lien case and awarding a new trial. The precise question presented is whether in such a suit the District Court has jurisdiction to grant a new trial after thirty days have elapsed from the date of the original judgment; and the solution of this question depends on whether the District Court practice in mechanics’ lien cases is to be regulated at such a juncture by the District Court act or by the Practice act.

By section 17 of the District Court act (Comp. Stat., p. 1959) it is provided that—

“In every case tried in any of said courts the judge ma}’, if he sees fit, order a new trial to be had upon such terms as he shall think reasonable, and in the meantime stay proceédings, provided that application for such new trial, except where the [477]*477said application is based upon newly-discovered evidence, shall l>e made within thirty days after judgment.”

Consequently, it is plain that unless some other statutory provision takes precedence, the jurisdiction of the District Court to grant a new trial in any case before it is limited to the thirty days specified.

The defendant presented meritorious grounds for the opening of the judgment and relied upon section 68 of the District Court act (Comp. Stat, p. 1977), which provides that— “The practice of the Circuit Courts, in so far as applicable, shall apply to District Courts, excepting, however, in cases whore there may he some express provision, of law providing otherwise;” and claimed that so far as related to mechanics’ lien suits, section 11? of the Practice act of 1903 (Comp. Stat, p. 4087) was applicable. That section reads as follows:

“If in any action judgment shall pass against either party by reason of the failure of the attorney of such party to file any proper pleading, the court or a judge shall on application within one year after the entry of such judgment, open said judgment and permit a proper pleading to be filed upon terms, if in the opinion of the court or judge injury or wrong has resulted or may result from such failure.”

The judge took this view and held that as the recent legislation conferring upon the District Courts the power to take cognizance of mechanics’ lien suits, transferred to them for the purposes of convenience, a jurisdiction theretofore exercised solely by the Circuit Courts, which were regulated by the Practice act, the legislative intent was that that act where applicable should control District Court practice in mechanics’ lien cases, and that in consequence he was entitled to grant a new trial under section 11? of the Practice act. This, we ihink, was erroneous, for the reason that by the express terms of section 83 of the Mechanics’ Lien act (Comp, Stat., p. 3307, as amended by Pamph. L. 1912, p. 470) it is provided that “when the suit is brought in a District Court, the practice shall be as nearly as possible the same as now provided or may hereafter be provided by law in District Courts in actions on cojxtraet.”

[478]*478The meaning of this language seems to .he perfectly plain, and there can be no question whatever but that by the practice of District Courts in actions on contract, a new trial cannot be granted after thirty days. Rosner v. Cohn, 81 N. J. L. 343.

The .order opening the judgment and granting a new trial will therefore be set aside, with costs.

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Bluebook (online)

92 A. 274, 86 N.J.L. 476, 1 Gummere 476, 1914 N.J. Sup. Ct. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levine-v-schwartz-nj-1914.