McDermott v. Henry

Supreme Court of New Jersey

McDermott v. Henry

177 A. 847, 114 N.J.L. 545, 1935 N.J. Sup. Ct. LEXIS 454

DecidedApril 4, 1935

StatusPublished

This text of 177 A. 847 (McDermott v. Henry) 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

McDermott v. Henry, 177 A. 847, 114 N.J.L. 545, 1935 N.J. Sup. Ct. LEXIS 454 (N.J. 1935).

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Opinion

The opinion of the court was delivered by

Parker, J.

The plaintiff-appellant recovered a judgment in the Mercer Common Pleas against the administrators cum testamento annexo of the estate of Boger Henry, deceased, on a debt of said deceased. Execution issued on the judgment and was levied on a bank balance standing to the credit of the estate, as a “right and credit” of said estate. Pamph. L. 1915, p. 182, §§ 1 and 2. Under section 9 of the same act, the court made an order that the bank show cause why the balance should not be applied to satisfaction of the execution. The administrators resisted the application, and the court made an order discharging the rule to show cause, and quashing the execution. The appeal is from this order.

We find it unnecessary to go into the merits, as the rule is settled that a review of these proceedings in aid of execution must be by certiorari. Gordon v. Pannaci, 90 N. J. L. 392. The case of Eames v. Stiles, 31 Id. 490, cited for appel *546 lant, is not applicable, for the reason that the review in that case was in the Court of Errors and Appeals, which does not review by certiorari. In the present case the Supreme Court is asked to review a proceeding not according to the course of the common law, and in an inferior tribunal. Such review on well settled principles is by certiorari.

The appeal will be dismissed, with costs, but without prejudice to an application for certiorari.

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The opinion of the court was delivered by

Parker, J.

The plaintiff-appellant recovered a judgment in the Mercer Common Pleas against the administrators cum testamento annexo of the estate of Boger Henry, deceased, on a debt of said deceased. Execution issued on the judgment and was levied on a bank balance standing to the credit of the estate, as a “right and credit” of said estate. Pamph. L. 1915, p. 182, §§ 1 and 2. Under section 9 of the same act, the court made an order that the bank show cause why the balance should not be applied to satisfaction of the execution. The administrators resisted the application, and the court made an order discharging the rule to show cause, and quashing the execution. The appeal is from this order.

We find it unnecessary to go into the merits, as the rule is settled that a review of these proceedings in aid of execution must be by certiorari. Gordon v. Pannaci, 90 N. J. L. 392. The case of Eames v. Stiles, 31 Id. 490, cited for appel *546 lant, is not applicable, for the reason that the review in that case was in the Court of Errors and Appeals, which does not review by certiorari. In the present case the Supreme Court is asked to review a proceeding not according to the course of the common law, and in an inferior tribunal. Such review on well settled principles is by certiorari.

The appeal will be dismissed, with costs, but without prejudice to an application for certiorari.

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Bluebook (online)

177 A. 847, 114 N.J.L. 545, 1935 N.J. Sup. Ct. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-henry-nj-1935.