State v. Hertzman

47 N.J.L. 225, 1885 N.J. Sup. Ct. LEXIS 48

• Court: Supreme Court of New Jersey
• Decided: June 15, 1885
• Status: Published

Opinion

The opinion of the court was delivered by

Depue, J.

This writ brings up for review an order for discovery in aid of an execution made by a judge of the District Court. The judgment with respect to which the order was made is for $33 debt and forty-five cents damages and costs.

The sixth section of an act relative to the jurisdiction and practice of District Courts provides that the judges of the said courts shall have the same powers, jurisdiction and authority, upon petition for discovery in aid of execution, as are now vested in or exercised by any of the judges of the Court of Common Pleas of this state. Ramph. L. 1882, p. 195. The statute which confers the power, jurisdiction and authority on judges of tire Court of Common Pleas to make such orders for discovery contains a proviso “ that no such order shall be made when the amount due on such judgment shall be less than $50.” Rev., p. 393, § 24.

The theory on which this order was made is that the power of judges of the Court of Common Pleas to make such orders, confei’red in the body of the section last referred to, is conditional only upon the execution being returned unsatisfied in whole or in part, and that the restriction on that power, being expressed in a proviso, is operative only upon judges of the Court of Common Pleas, and does not extend to judges of the District Court. We are unable to yield to the force of this reasoning. The act conferring this power and jurisdiction upon judges of the District Court grants to such judges only the same power as is vested in the judges of the Common Pleas, and whatever restrictions or limitations there are by law imposed upon the judges of the Common Pleas are applicable as well to the judges of the District Court.

The order in this case, having been made where the amount due on the judgment was less than $50, must be set aside.