81 N.J. Eq. 486 | N.J. | 1913
The opinion of the court was delivered by
The complainant, having done work and furnished material in the construction of a building which was being erected under a contract in writing, and on file, made by the defendant with one Yallario, and payment for such work and materials not having been made to it by the contractor, served a stop-notice upon the defendant under the third section of the Mechanics’ Lien law. The defendant having refused to recognize the validity of the complainant’s claim by payment thereof, the present bill was filed for the purpose of foreclosing what is called a lien upon tire funds in the hands of the defendant, and due to the contractor at the time of the serving of the stop-notice. A
The title of the act referred to by the vice-chancellor as the basis of his action is “An act to provide for the transfer of causes by and between the court of chancery and the supreme court or circuit courts or courts of common pleas.” P. L. 1912 p. 1/-17. The act itself provides that
“no civil cause or matter hereafter pending in any court mentioned in the above title which has not jurisdiction of. the subject-matter shall be dismissed for that cause only, but the cause or matter shall be transferred with the record thereof, and all papers filed in the cause, for hearing and determination to the proper court, which shall thereupon proceed therein as if the cause or matter had been originally commenced in that court. The record shall, when necessary, include a transcript of all entries and proceedings in the cause. Such transfer may be made at any stage of the proceedings, and upon, or without, application.”
A reading of this enactment discloses at once that if the court below was right in considering that it had jurisdiction of the subject-matter of this litigation, the order appealed from cannot be justified, for the statute permits the transfer of a cause from the court of chancery to a law court only when it “has not juris-, diction of the subject-matter.” The validity of the order must, therefore, depend upon the soundness of the conclusion of the vice-chancellor upon the question of jurisdiction.
Had, then, the court of chancery jurisdiction of the subject-matter of this litigation ? We think not. Under the Mechanics’
The finding of the court of chancery that it had jurisdiction to enforce the complainant’s claim against the defendant being erroneous, and that jurisdiction residing solely in the law courts, the order transferring the cause to the Hudson circuit court will be affirmed.
For affirmance — The Chief-Justice, Garrison, Swayze, Parker, Kalisci-i, Bogert, Yredenburgh, Congdon, White, 'Terhune, Heppenheimer — 11.
For reversal — Hone.