Little v. Long

Supreme Court of New Jersey

Little v. Long

107 A. 412, 93 N.J.L. 99, 8 Gummere 99, 1919 N.J. Sup. Ct. LEXIS 39

CourtSupreme Court of New Jersey

DecidedJune 24, 1919

StatusPublished

Cited by3 cases

This text of 107 A. 412 (Little v. Long) 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

Little v. Long, 107 A. 412, 93 N.J.L. 99, 8 Gummere 99, 1919 N.J. Sup. Ct. LEXIS 39 (N.J. 1919).

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Opinion

[100]*100The opinion of the court was delivered by

Minturn, J.

The writ removes a judgment in attachment rendered by the court for the trial of small causes in Cumberland county. The affidavit alleged defendant was a non-resident and absconded from his “debtors.” Judgment was rendered by the justice in favor of the plaintiff, no appearance being made by tire defendant. The record shows that for years past the defendant was a resident of the county, and engaged in business therein, so that service of ordinary process might at any time have been served upon him, or a member of his family.

This fact must have been known to the plaintiff, and to the justice of the peace who granted the writ, or upon proper inquiry would have been made known to them. Stafford v. Mills, 57 N. J. L. 570.

Within a few days after the issuance of the writ the plaintiff in attachment received and used a check from this prosecutor in part payment of the note in suit, together with a renewal note for the balance, which facts lend no- color to the charge that the prosecutor had absconded or changed his usual abode. They were enough in themselves to say the least, to warrant inquiry by the plaintiff before charging the prosecutor with the mala ffdes incident to an allegation of absconding, with a view to defrauding his “debtors.”

Ror was the statutory requirement complied with in an affidavit which expressly charges the defendant with the unique and unusual proceeding (of absconding from his “debtors.”

The proceedings are statutory, and out of the course of the common law, and result in taking the property of a defendant in an ex parte proceeding, in invitum, and therefore must be strictly pursued. Corbit v. Corbit, 50 N. J. L. 363.

Other delinquencies in procedure anterior and subsequent to the-issuance of the writ are manifest in the record, but those mentioned are obviously sufficient to render any profitable discussion of the others unnecessary.

The writ of attachment, judgment and all proceedings based thereon are set aside, with costs. •

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[100]*100The opinion of the court was delivered by

Minturn, J.

The writ removes a judgment in attachment rendered by the court for the trial of small causes in Cumberland county. The affidavit alleged defendant was a non-resident and absconded from his “debtors.” Judgment was rendered by the justice in favor of the plaintiff, no appearance being made by tire defendant. The record shows that for years past the defendant was a resident of the county, and engaged in business therein, so that service of ordinary process might at any time have been served upon him, or a member of his family.

This fact must have been known to the plaintiff, and to the justice of the peace who granted the writ, or upon proper inquiry would have been made known to them. Stafford v. Mills, 57 N. J. L. 570.

Within a few days after the issuance of the writ the plaintiff in attachment received and used a check from this prosecutor in part payment of the note in suit, together with a renewal note for the balance, which facts lend no- color to the charge that the prosecutor had absconded or changed his usual abode. They were enough in themselves to say the least, to warrant inquiry by the plaintiff before charging the prosecutor with the mala ffdes incident to an allegation of absconding, with a view to defrauding his “debtors.”

Ror was the statutory requirement complied with in an affidavit which expressly charges the defendant with the unique and unusual proceeding (of absconding from his “debtors.”

The proceedings are statutory, and out of the course of the common law, and result in taking the property of a defendant in an ex parte proceeding, in invitum, and therefore must be strictly pursued. Corbit v. Corbit, 50 N. J. L. 363.

Other delinquencies in procedure anterior and subsequent to the-issuance of the writ are manifest in the record, but those mentioned are obviously sufficient to render any profitable discussion of the others unnecessary.

The writ of attachment, judgment and all proceedings based thereon are set aside, with costs. •

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Bluebook (online)

107 A. 412, 93 N.J.L. 99, 8 Gummere 99, 1919 N.J. Sup. Ct. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-long-nj-1919.

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