Citation Numbers: 10 A.2d 547, 49 N.J.L. 633
Judges: McGILL, Ch.
Filed Date: 6/5/1887
Status: Precedential
Modified Date: 1/12/2023
The plaintiffs in error, partners trading as H.W. Stehr Co., were sued in assumpsit upon a joint contract. One of them, Henry W. Stehr, was served with the summons, and a copy of the declaration thereto annexed, on April 2, 1885, and the other, Clements A. Kroger, was subsequently returned by the sheriff "not found." The summons was returnable on the ninth of April. On May the 11th, no plea or demurrer having been filed, judgment was entered against both of the defendants. The right to enter such judgment is claimed under the supplement to the act to regulate the practice of courts of law, which was approved April 25, 1884, (Pamph. L. 267.) This supplement provides that the plaintiff may annex his declaration to the summons, and deliver both summons and declaration to the sheriff, with as many copies thereof as there are defendants to be served; and that when the sheriff serves the summons he shall at the same time serve a copy of the declaration on each defendant; and that, in default of the defendants pleading within 30 days from such service, judgment may be entered against them. On the other side, it is claimed that the provisions of this statute do not extend to the case of joint debtors, where one only is served with process and a copy of the declaration.
The question here presented was raised in the supreme court of this state in the case of McMurtrie v. Doughten,
Having in view such criticism, the provisions of the statutes, having for their purpose the shortening of the time within which judgment may be entered, should not be extended to the case of absent joint debtors without notice of the suit against them, unless it is clearly the legislative intent that they shall be so extended. The act of 1884 makes no reference to the entry of judgment against an absent defendant who has not been served with summons or notice, nor does it in any way manifest an intent that its provisions shall be extended to such a case, and it therefore affords no authority for the judgment in this case.
The defendants in error were not entitled to judgment at the time it was entered. Stehr and Kroger had 60 days from the return of the summons within which to plead, (Revision, pp. 864, 865, §§ 103, 104,) and were not in default until the expiration of that time. As they are joint debtors, one of whom had been brought into court in a suit against all, the judgment could not be entered against the defendant who had been served with process alone. 1 Burrill, Pr. 278; Harker v. Brink,
The judgment must be set aside. (Unanimously reversed.)
Schweitzer v. Bank of America National Trust & Savings Ass'n , 42 Cal. App. 2d 536 ( 1941 )
Hardy v. Prather , 208 Ga. 764 ( 1952 )
Alvin v. Johnson , 241 Minn. 257 ( 1954 )
Gruman v. Investors Diversified Services, Inc. , 247 Minn. 502 ( 1956 )
City of Camden v. South Jersey Port Com'n , 2 N.J. Super. 278 ( 1949 )
Gainey v. Coker's Pedigreed Seed Co. , 227 S.C. 200 ( 1955 )