124 A. 48 | N.J. | 1924
The fundamental error alleged is that, after interlocutory judgment by default against the defendant-appellant, final judgment was entered as on an assessment of damages in the usual course, when in fact such damages were not formally assessed as provided by law and the rules of *332 court. The judge of the Essex Circuit Court was asked to open the judgment and declined to do so, on grounds presently to be stated.
No question either of surprise or of merits is present in the the case. Appellant was the maker of a promissory note for $675 held in due course by the respondent bank. The note was not paid, and the bank brought this suit. The summons and complaint were duly served. The complaint contained a copy of the note. Defendant attempted to settle the suit by a payment on account and a new note, but it does not appear that the bank attorney (who seems also to have been appellant's attorney in other litigation) had power to make such settlement, and the bank never accepted either the money or the new note. For want of an answer, judgment interlocutory by default was entered on March 2d, a month after service of summons and complaint.
So far, the legality of the precedure is not questioned. But the rule as entered in the minutes goes on to say that "no rule for a writ of inquiry or assessment of damage in open court having been entered, and the clerk of the court having assessed the damage of the plaintiff as against the defendant pursuant to the statute, it is on this," c., ordered that judgment final be entered, c., in the sum of $675, "with interest from January15th, 1923, at six per cent. and the costs of this suit to be taxed." The judgment record uses the same language, but the figures are: Damages, $675; costs, $42.84; total, $717.84.
The assessment of damages in cases of this kind is a somewhat perfunctory matter. It is provided for by sections 136 and 139 of the Practice act of 1903, but was made at common law independently of those provisions. Peacock v. Haney,
It is perfectly plain that if at any time between March 2d and April 25th the judgment final had been opened, plaintiff would have been entitled to re-enter it on going through the pure formality of an assessment of damages, for the interlocutory judgment was, as we have said, entirely regular. After April 25th a reopening would, perhaps, have lifted the execution. Sale having taken place in regular course, it is not likely that the rights of the purchaser at the sale would be affected if this judgment were now reversed. Shultz v. Sanders,
The judgment will be affirmed. *334