97 N.J.L. 468 | N.J. | 1922
The opinion of the court was delivered by
This action was brought by the Assets Development Company, as plaintiff, against Wall, as substituted administrator of the estate of F. Augustus Heinze, deceased, to recover certain moneys alleged to be due upon a promissory note made by the defendant’s intestate to one Geer and assigned by him to the plaintiff. The plaintiff averred that a demand for payment of this claim had been duly filed with the defendant as substituted adminis
Tho first contention is that the court erred in directing that the judgment originally entered should be opened, notwithstanding that it appeared on the hearing of the application that the defendant had no knowledge of the entry of the rule or decree at the time of the original trial, and did not discover the fact of such entry until a short time before he made his application to open the judgment.
That the courts of this state, whose practice and procedure are .in accordance with the rules and regulations of the common law, have power to open judgments upon good cause shown is settled beyond controversy. It was exercised by the Supreme Court as early as the year 1795, in the case of Miller v. Alexander, 1 N. J. L. 400, and has continued to
We conclude that the first ground upon which this appeal is rested is without legal merit.
The next contention made by the appellant is that the court erred in striking out the reply to defendant’s answer setting up the rule and decree barring creditors. It is conceded that as a general rule the orders and decrees of the surrogate are not open to attack in a collateral proceeding, but it is argued that this legal principle does not apply where the order or decree is attacked upon the ground of lack of 'jurisdiction in the surrogate to make it, and Quidort’s Admr. v. Pergeaux, 18 N. J. Eg. 472, 477, and Ryno's Excr. v. Ryno’s Admr., 27 Id. 522, 524, are cited as supporting this contention. In the Quidort case .the situation was this: The complainant, as administrator of Quidort, recovered a judgment against the defendant, Pergeaux, and issued execution thereon, which was returned unsatisfied. He then filed his bill in chancery, charging that certain premises standing in the name of Pergeaux’s wife had been purchased by the husband and the title placed in the wife’s name for the purpose of defrauding his (the husband’s) creditors. In this situation the defendants attempted to shovr that Quidort left a will and that therefore the grant of administration to the complainant by the surrogate was unlawful, and void. It was held that the court could not consider the question of the right to administration and that the act of the surrogate in granting the letters could only be reviewed by appeal, the court saying, “Like the acts of all other regularly constituted
One other ground of appeal remains to be considered, and that is that, by the true construction of the pertinent provisions of our Orphans’ Court act, the decree barring creditors only protects the executor or administrator upon whose application it was entered, and does not bar a creditor of the estate from suing a substituted administrator who has been appointed after the entry of the decree. In other words, that the purpose of the legislation was merely to protect the then representative of the decedent’s estate from suit by creditors, and not to protect the estate itself, pending its settlement, against the prosecution of claims which were barred by the decree when it was entered. The basis of the argument is that, by section 70 of the statute, a creditor who has not brought in his claim within the time provided by the rule to limit creditors taken out by the executor or administrator “shall by such decree be forever barred of his action against such executor or administrator.” So illogical a purpose is not to be attributed to the legislative body unless it is expressed in the statute in words so clear as to compel the construction attempted to be put -upon it by counsel. - Its result would be to make the ultimate settlement of decedents’ estates depend not only upon a compliance with the orderly
The judgment under review will be affirmed.
For affirmance — The Chancellor, Chief Justice, Sway,ze, Trenchaed, Parker, Bergen, Minturn, Kalisoh, Black, Katizenbach, “White, Williams, Gardner, Ackerson, Tan Buskiek, JJ. lo.
For reversal — Tone.