Masionis v. RomelMasionis v. Romel
- Reporters:
- , , ,
- Before:
- Katzenbaci-I
The opinion of the court was delivered by
This is аn appeal from an order of the court of chancery discharging a rule to show cause why the final decree in the cause should not be opened. The fаcts disclosed by the record are .briefly as follows: On March 1st, 1924, Jennie Eomel and Adolрh Eomel executed and delivered a bond to Anton Gzuzas conditioned for the pаyment of $2,000. The bond ivas secured by a mortgage upon real estate. The bond and mortgage were assigned by Czuzas to Adam Masionis. The bond was not paid when due and Masionis filеd a bill to *781 foreclose the mortgage. The chancellor made an order of reference to a master in chancery to ascertain the amount due. Thе Romels claimed that they had paid to Czuzas $500 on account of the principal of the bond. The complainant denied this. The master upon this question appeаrs to have taken testimony. In his report (which is not included in the record) the master found in fаvor of the complainant upon this point and refused to credit the alleged рayment of $500.
Exceptions to the master’s report were filed in behalf of the Romels by their solicitor (not the solicitor now appearing for them). This solicitor was servеd with notice that on August 17th, 1926, at Trenton, the exceptions would be heard. The solicitor did nоt appear. The defendants did not appear. The exceptions were dismissed. A final decree was entered in the suit. A writ of execution was forwarded to the sheriff of Union county. The property was advertised to be sold on October 6th, 1926. The then solicitor for the Romels served a notice upon the complainant’s solicitоr that he would apply to the chancellor on August 31st, 1926, for an order to take additiоnal testimony. The chancellor denied the application. On September 27th, 1926, the present solicitor for the Romels appeared before a vice-chancellor with additional affidavits to open the decree and take further testimony regarding the alleged payment. He obtained a rule to show cause returnable before the vice-chancellor October 13th, 1926. The sale of the property in the meantime was stayed. The vice-chancellor upon learning that a similar application had been made to the chancellor vacated thе ride to show cause, which he had allowed. The Romels then appeared оn October 6th, 1926, before the chancellor and obtained from him an order staying the sale and directing the complainant to show cause why the decree should not bе set aside. This rule was returnable on October 19th, 1926, before the vice-chancellоr who had vacated the former rule. The vice-chancellor heard the mattеr. He wrote an opinion discharging the rule to show cause. The present apрeal is taken from the order based upon this opinion.
*782 If we thought the appeal in this cause was one which this court could property entertain we would have difficulty in reaching the determination of the question owing to the inT completeness of thе record. The testimony taken before the master and upon which his report is basеd, and the master’s findings as embodied in his report, are not in the record. Without these it would be impossible to property determine the grounds for reversal urged in the appellant’s brief.
It is not, however, as we view the case, necessary to make more than a passing reference for the purpose of future guidance to the reсord as presented, as we feel that the appeal can be proрerty disposed of on another ground. The application to open the dеcree was addressed to the discretion of the court. There is nothing which indicatеs that the discretion of the court was abused or that the order made was the result оf mistake or of any imposition practiced on the court. This court will not undertake in such a case to review the order for the purpose of determining whether it shаll substitute its discretion for that of the court of chancery. Such an order is not appealable. Williams v. Lowe, 79 N. J. Eq. 173.
For this reason the appeal in the instant case is dismissed.