Frytez v. Gruchacz ( 1941 )

The appeal is from a judgment of nonsuit entered pursuant to N.J.S.A. 2:27-215. We find no abuse of discretion. Stein v.Goodenough, 73 N.J.L. 812.

An action was commenced in November, 1926, to recover on a note of April 23d 1923, and for money advanced to the defendant during the years 1922 to 1925. Nothing seems to have been done in this cause till a default judgment was entered in 1939. This judgment was vacated and the service of a summons set aside. An earlier suit for the same cause of action was then discovered, and it is claimed that a notice of trial was then served on the defendant, her attorney being dead. The plaintiff's attorney had not notified the defendant to employ an attorney. N.J.S.A. 2:20-6. It is not necessary, however, to decide whether that step should have been taken since the trial judge has entire control of his calendars, and we do not think a cause so long delayed in prosecution should have a place in the court.

The judgment is affirmed.

For affirmance — THE CHANCELLOR, PARKER, CASE, BODINE, DONGES, PORTER, DEAR, WELLS, RAFFERTY, JJ. 9.

For reversal — THE CHIEF JUSTICE, HEHER, PERSKIE, WOLFSKEIL, HAGUE, JJ. 5.