Orifice v. Ayvad Water Wings, Inc.

Supreme Court of New Jersey

Orifice v. Ayvad Water Wings, Inc.

44 A.2d 37, 133 N.J.L. 287, 1945 N.J. Sup. Ct. LEXIS 75

DecidedOctober 4, 1945

StatusPublished

This text of 44 A.2d 37 (Orifice v. Ayvad Water Wings, Inc.) 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

Orifice v. Ayvad Water Wings, Inc., 44 A.2d 37, 133 N.J.L. 287, 1945 N.J. Sup. Ct. LEXIS 75 (N.J. 1945).

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Opinion

Per Curiam.

Defendant appeals from an order of the Hudson County Court of Common Pleas which denied its application for an extension of time within which to file an affidavit of merits and answer and also from the judgment entered against it as the result of said order.

There was no abuse of discretion by Judge Ziegener, who heard the motion. There is nothing in the record upon which the court could have abused its discretion, it was never called upon to exercise it. There was no testimony or proof upon which the court could have made a determination in favor *288 of the defendant. Neither was there any proof by which the defendant explained its failure to file an affidavit of merits, that it had been surprised or that it had a meritorious defense.

The defendant elected at the hearing before the court below to rely on oral argument and an ex parte affidavit which could not properly be used. Peer v. Bloxham, 82 N. J. L. 288; Goldstein, v. Weir, 124 Id. 327. Proper practice dictated that the defendant obtain a rule to show cause why the judgment should not be opened and an opportunity given to file an affidavit of merits and answer. Depositions should then have been taken for use on the argument of the rule.

The order and judgment appealed from are affirmed, with costs.

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Per Curiam.

Defendant appeals from an order of the Hudson County Court of Common Pleas which denied its application for an extension of time within which to file an affidavit of merits and answer and also from the judgment entered against it as the result of said order.

There was no abuse of discretion by Judge Ziegener, who heard the motion. There is nothing in the record upon which the court could have abused its discretion, it was never called upon to exercise it. There was no testimony or proof upon which the court could have made a determination in favor *288 of the defendant. Neither was there any proof by which the defendant explained its failure to file an affidavit of merits, that it had been surprised or that it had a meritorious defense.

The defendant elected at the hearing before the court below to rely on oral argument and an ex parte affidavit which could not properly be used. Peer v. Bloxham, 82 N. J. L. 288; Goldstein, v. Weir, 124 Id. 327. Proper practice dictated that the defendant obtain a rule to show cause why the judgment should not be opened and an opportunity given to file an affidavit of merits and answer. Depositions should then have been taken for use on the argument of the rule.

The order and judgment appealed from are affirmed, with costs.

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Bluebook (online)

44 A.2d 37, 133 N.J.L. 287, 1945 N.J. Sup. Ct. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orifice-v-ayvad-water-wings-inc-nj-1945.