68 N.J.L. 186 | N.J. | 1902
The opinion of the court was delivered by
Suit was commenced in a Justice’s Court in Burlington county on January 9th, 1901, by summons issued on that day and returnable on the 17th. The summons was served on the 12th. Defendant did not appear before the justice upon' the return day, and, in his absence, judgment was taken against him. The next term of the Court of Common Pleas opened on January 22d. Defendant filed no appeal bond on or before that day and indeed took no step towards demanding an appeal from the time of the rendition of the judgment
In addition to the facts above mentioned, it appears from the certified findings of the Court of Common Pleas that defendant, on being sued in the Justice’s Court, secured an agreement, in writing, from the plaintiff to adjourn the trial to a day subsequent to January 22d, but afterwards defendant consulted counsel, and pursuant to advice thus received he entered into a verbal arrangement with the plaintiff, the effect of which was to waive the stipulation for postponement and “to let judgment be taken by default before the justice and the case-heard on appeal, rather than adjourn the case and have a contest before the justice.” Thereupon defendant, still acting under advice of counsel, caused an appeal bond to be prepared (except for filling in the amount of the judgment) and had a bondsman ready to sign it. On the morning of the return day the defendant, with his bondsman and the bond, was at a town eight miles distant from the justice’s office. The weather being very disagreeable, and defendant desiring to avoid the necessity of driving that distance, he spoke with plaintiff’s attorney by telephone and arranged with him that information should be sent to the defendant as to the amount of the judgment and costs, in order that the appeal bond might be properly filled up and signed and forwarded to the justice, with the costs of the appeal. Relying upon this arrangement, the defendant did not appear before the justice, and the plaintiff took judg
These facts and circumstances were deemed by the Court of Common Pleas sufficient ground for making an order permitting the defendant to appeal, and requiring the justice to send up the transcript.
In this the court erred. It is established by repeated decisions of this court that sections 79 to 83 of the Justice’s Court act (Gen. Stat., pp. 1880, 1891) require the appeal to be taken on or before the first day of the term of the Court of Common Pleas next after the rendition of the judgment. Lear v. Budd, 27 Vroom 457; West Jersey, &c., Railroad Co. v. Miller, 37 Vroom 178, and cases cited. The case of Lacy v. Cox, 3 Gr. 469, was entirely exceptional and furnishes no precedent for granting an appeal in the present ease. If in any circumstances the Court of Common Pleas has jurisdiction to grant an appeal where one has not been duly demanded on or before the first day of the term, the circumstances of this case a,re not such as to warrant the grant of an appeal. There is no sufficient excuse for the defendant’s delay. He was not justified in resting so long upon a verbal arrangement made by telephone with plaintiff’s attorney, even if he had any right to call upon that attorney for information to aid him in taking an appeal from a judgment which the attorney’s duty to his client required him to uphold and enforce. There being no stipulation, in writing, binding upon the plaintiff, the attorney, in agreeing to give notice to the defendant, must, under the circumstances, be treated for that purpose as the agent of the defendant and not of the plaintiff. Of course, defendant’s ignorance of the
The order and proceedings of the Court of Common Pleas should be set aside, with costs.