Malaney v. Hughes

Supreme Court of New Jersey

Malaney v. Hughes

14 A. 748, 50 N.J.L. 546, 1888 N.J. Sup. Ct. LEXIS 36

DecidedJune 15, 1888

StatusPublished

This text of 14 A. 748 (Malaney v. Hughes) 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

Malaney v. Hughes, 14 A. 748, 50 N.J.L. 546, 1888 N.J. Sup. Ct. LEXIS 36 (N.J. 1888).

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Opinion

The opinion of the court was delivered by

Dixon, J.

We agree with the District Court that the-docket discloses a judgment against Eliza Hughes alone. Although it shows a suit commenced against both defendants,, yet the return to the summons evinces jurisdiction obtained over Eliza only (unless Eliza and Thomas are to be regarded as joint debtors), and every subsequent step in the cause is recorded as if it had been taken with reference to a single defendant, who must be considered to be Eliza, in order to sustain the propriety of the proceedings.

A different conclusion might be rendered necessary if the docket indicated that Thomas and Eliza were sued as joint' debtors, but the docket is silent on that point, and under the supplement to the Small Cause act, approved March 9th, 1877 (Rev. Sup., p. 402), parties separately liable on bills of exchange and promissory notes may be included in one action ; and an assumption that these parties were sued on some such liability will support the propriety in substance of every entry in the docket, and therefore is the assumption which ought to-be made. The lack of any statement in the docket that the action against Thomas was discontinued, or that any bill or note was offered in evidence, does not militate against this assumption with sufficient force to overcome it.

The judgment brought up was therefore right.

The order of the Common Pleas to remit the record and proceedings may perhaps be unwarranted in regard to the case stated for the appeal, but in regard to the determination of the Common Pleas it follows the ruling in Guerin v. Rodwell, 8 Vroom 71. As applied to the case stated, it wrought no injury to the plaintiff, except a slight inconvenience in getting his case before this court for review. That inconvenience will not be relieved by our reversing the order now.

[549]*549The judgment below will be affirmed, but as the defendants in certiorari have not appeared, no order for costs to ■them will at present be made.

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The opinion of the court was delivered by

Dixon, J.

We agree with the District Court that the-docket discloses a judgment against Eliza Hughes alone. Although it shows a suit commenced against both defendants,, yet the return to the summons evinces jurisdiction obtained over Eliza only (unless Eliza and Thomas are to be regarded as joint debtors), and every subsequent step in the cause is recorded as if it had been taken with reference to a single defendant, who must be considered to be Eliza, in order to sustain the propriety of the proceedings.

A different conclusion might be rendered necessary if the docket indicated that Thomas and Eliza were sued as joint' debtors, but the docket is silent on that point, and under the supplement to the Small Cause act, approved March 9th, 1877 (Rev. Sup., p. 402), parties separately liable on bills of exchange and promissory notes may be included in one action ; and an assumption that these parties were sued on some such liability will support the propriety in substance of every entry in the docket, and therefore is the assumption which ought to-be made. The lack of any statement in the docket that the action against Thomas was discontinued, or that any bill or note was offered in evidence, does not militate against this assumption with sufficient force to overcome it.

The judgment brought up was therefore right.

The order of the Common Pleas to remit the record and proceedings may perhaps be unwarranted in regard to the case stated for the appeal, but in regard to the determination of the Common Pleas it follows the ruling in Guerin v. Rodwell, 8 Vroom 71. As applied to the case stated, it wrought no injury to the plaintiff, except a slight inconvenience in getting his case before this court for review. That inconvenience will not be relieved by our reversing the order now.

[549]*549The judgment below will be affirmed, but as the defendants in certiorari have not appeared, no order for costs to ■them will at present be made.

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Bluebook (online)

14 A. 748, 50 N.J.L. 546, 1888 N.J. Sup. Ct. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malaney-v-hughes-nj-1888.