Russell v. Russell-Robinson Co.

91 A. 329, 86 N.J.L. 13, 1 Gummere 13, 1914 N.J. Sup. Ct. LEXIS 49

• Court: Supreme Court of New Jersey
• Decided: July 10, 1914
• Status: Published

Opinion

The opinion of the court was delivered by

Garrison, J.

The judgment entered on June 3d, 1913, is one apon which execution may issue. This was expressly decided in Erie Railway Co. v. Ackerman (1868), 33 N. J. L. 33. This decision lias not been overruled.

The ease of McNamara v. New York, Lake Erie and Western Railroad Co. (1893), 56 N. J. L. 56, dealt not with the effect of a judgment nisi entered prior to the discharge of an outstanding rule to show cause, hut solely with the effect of a judgment final entered after such a rule had been discharged, holding with respect to such final judgment that although entered nnne pro tunc as of the time of the filing of the postea, it would bo a lien on lands only from the date of its actual entry.

There is no conflict between ihe rule stated by Judge Elmer in the earlier ease and that stated by Judge Depue in the later one; they are to be read together. The practice thus laid down is that upon filing the postea a judgment nisi may be entered upon which, notwithstanding a rule to show cause has been allowed, an execution may issue, which will, however, be rendered void if such rule is made absolute, but which, if such rule is discharged and judgment final is entered as of the date of such judgment nisi, remains in full force and effect as to lands of which the judgment debtor was seized at the time of the actual entry of such judgment nisi; hut this result cannot be obtained by the mere entry of judgment final nunc pro tunc as of the time of the filing of the postea. This last clause is the contribution of the McNamara case and is all that that ease decided upon this point, as appears by the opinion of Mr. Justice Depue, who cited the earlier case of Erie Eailroad Co. v. Ackerson, without a suggestion that it was disapproved, still less that it was repudiated and overruled. To overrule a practice decision of twenty-five years’ standing in any such fashion as this would be at total variance with the judicial habit of this court, and pre-eminently so hr the case of Mr. Justice Depue, whose punctiliousness as a practitioner was only equaled by his solicitude for stare decisis.

The fact now shown to us that a judgment nisi had been entered in the McNamara case does not alter the fact that such judgment was not placed before the court for its opinion as to its force abd effect, but that such opinion was rendered solely as to the effect of a judgment final if entered time pro tunc as of the time when the plaintiff was entitled to enter a judgment nisi which the court evidently thought had not been entered, and hence expressed no opinion concerning it.

Upon no other theory is it possible to explain the fact that Judge Depue, on two occasions, went out of his way to suggest the proper practice as to the entry of judgment nisi, evidently under the impression that it had not been followed. The opinion opens with the recitai that “in the regular course of proceeding the postea would have been filed and judgment entered thereon at the term of February, 1893,” and it closes with this significant paragraph: “Tt may be added that the proper practice under this rule is to enter judgment nisi on the coming in of the postea, although the trial judge has previously granted a rule to show cause.”

It is inconceivable that this advice would have been tendered if the writer of the opinion was not under the impression that it had not been followed.

Another circumstance tending to the same end is that the notice by which the matter was brought to the attention of the court is entirely silent as to the existence of a judgment nisi, and that the notice given was of an application to order the judgment on the postea and discharge of the rule to show cause nunc pro tunc, from which it would appear that counsel as well as the court understood that the sole question presented by the motion ivas as to the entry of the judgment final and the date at which it took effect as a lien upon lands.

The learned Vice Chancellor has therefore correctly conceived and stated the practice in this court saving as to the doubts he expressed as to the effect o £ the McNamara, case upon the established practice stated in the case of Erie Railway Co. v. Ackerson.

The Court of Chancery in response to the questions propounded to this court is therefore certified that the judgment nisi entered on June 3d, 3913, hound the lands of the judgment debtor under section 2 of tlie act concerning judgments, and that entry of judgment final, on March oth, 1914, nunc pro tunc, did not affect this result adversely to the plaintiff, and hence, that the said judgment of April 13th,, 1913, bound the lands of the judgment, debtor title to which passed to the receiver on June 10th, 1913.

Other questions argued by counsel for the receiver, but not referred to us by the Court of Chancery, have for that reason received no attention under this strictly statutory proceeding.

Let the Court of Chancery be certified to the foregoing-effect.