McKenna v. Murphy

53 A. 695, 68 N.J.L. 522, 1902 N.J. Sup. Ct. LEXIS 36

• Court: Supreme Court of New Jersey
• Decided: November 10, 1902
• Status: Published

Opinion

The opinion of the court was delivered by

Hendrickson, J.

This proceeding is brought to set aside a judgment in a Justice’s Court of Monmouth county obtained in the absence of the defendant. The ground is that, pending the cause, the court had lost jurisdiction by irregular adjournments before the trial, and that the proceedings and judgment were coram non judice. The transcript shows that the return day was May 16th, 1901, and that, after various adjournments and delays, the judgment was entered on October 19th, 1901. Without reciting in detail from the record the occurrences at each of said adjournments, the following record appears under the date of July 2d, 1901: “The court unavoidably absent and both parties assented with each other for a hearing on July 9, 1901, same time and place.” It nowhere appears that defendant appeared on July 9th, or afterwards, before the justice, although, a number of adjournments are recorded as at request of plaintiff or to suit the convenience of the justice. There is an entry on October 8th, as follows: “At request of plaintiff adjourned the above case to October 19, at 10 o’clock A. M., and so notified defendant in writing.”

The transcript is no evidence of what the parties may have assented to with each other when out of court. These docket entries are limited to certain objects named in the statute and to such proceedings as are had before the justice touching the suit. Gen. Stat., p. 1888, ¶ 119. No sort of adjournment of the cause appearing by the docket as having occurred on July 2d, nor that this irregularity was afterwards cured by defendant’s appearance pursuant to notice, or otherwise waived, it follows that the justice had no jurisdiction of the cause when he gave judgment. This conclusion is amply sustained in the, following cases: Woodworth v. Woolverton, 4 Zab. 419; Taylor v. Doremus, 1 Harr. 473; Allen v. Summit Board, &c., 17 Vroom 99; Parker v. Mercantile Safe Deposit Co., 34 Id. 505. Also see Vandervoort v. Fleming, ante p. 507.

Another irregularity is shown, which must produce a like result. The justice adjourned the cause beyond thirty days, without affidavit and, so far as appears, without consent of the defendant. The result of this, also, would be a loss of jurisdiction. Taylor v. Doremus, supra; Savage v. Collins, 20 Vroom 167. The judgment below must be set aside, with costs.