17 A.2d 603 | N.J. | 1941
This case is in the Monmouth County Circuit Court and concerns the rights of the parties to certain household furniture. The case came to this court on appeal and the judgment below was affirmed on March 15th, 1939, in an opinion reported in
The motion now before us is to direct the court below to obey the remittitur.
The record of the case is not before us. Supporting the motion and a counter-motion for the taking of depositions, c., are certain affidavits. The factual situation is presented in the affidavits, copies of various petitions, orders and the briefs of counsel sufficient for present purposes. The facts seem to be that a mortgage on premises in Rumson owned by defendant and her husband James R. Deering, plaintiffs, was foreclosed and the amount recovered on a sale resulted in a deficiency on the bond. To recover the amount of the deficiency a suit was instituted in September, 1936, in attachment in the Monmouth County Circuit Court against James R. Deering against furniture located in the premises. Violet P. Deering, defendant, filed a claim of property in the furniture which has never been adjudicated. In April, 1937, a suit was instituted in attachment against the same furniture against the defendant herein which proceeded to sale on or *571
about June 18th, 1937. In that suit claims of property in the furniture were filed by William R. Deering and James A. Deering on June 15th, 1937, which claims have never been adjudicated. Thereafter in April, 1938, the defendant obtained an order to show cause why the attachment, resulting judgment and sale should not be vacated and set aside. The late Judge Lawrence, after hearing, concluded that "the sale of the goods and chattels undertaken to be attached thereunder [be] set aside, to the end that defendant, Mrs. Deering, may be restored to her rights herein in accordance with the rule suggested in St. Mary'sChurch v. Mayor, c., Gloucester City,
The question the defendant seeks to have adjudicated on this motion is whether or not the court below had the power to issue the writ of restitution conditional upon the payment of the money paid by the plaintiff. The argument being that the court exceeded its power, that this court in its remittitur remanded the case to the trial court for the purpose of issuing a writ of restitution restoring the furniture to the possession of the defendant without the imposition of any conditions.
We conclude that this matter is not properly before us and that we are without jurisdiction to decide it. Rather than appeal from the order complained of the defendant elected to argue the question before the trial court and obtained a rule to show cause for that purpose. The court considered all of the points here argued and dismissed the rule. There was not, nor could there be, a reservation of appeal on the return of a rule to show cause.McMichael v. Horay,
This court is without jurisdiction because the time during which an appeal from the action complained of has long since expired. When this court decided the appeal above mentioned and entered the remittitur its jurisdiction ceased and the court below again had jurisdiction. Its subsequent action cannot be reviewed, after the time for appealing has expired, by motion as is attempted here. Cf. King v. Ruckman,
The respondent, however, argues that these cases do not apply because in those cases there were no final judgments while in the instant case the writ of restitution was final and moreover in allowing it the court below was acting ministerially in carrying out the instructions of this court and that in attempting to do so violated this court's instructions. The argument being that it was limited in issuing a writ of restitution *573
restoring the goods to the defendant without condition or limitation. The basis of that contention was that the appeal was on a writ of restitution but such is not the fact. The appeal was on a rule to show cause why a writ should not issue. No writ had been issued and this court did no more than affirm the court below that a writ should issue restoring the goods to the defendant. To do so the court below was obliged to hear the matter in accordance with the law and proper procedure. We cannot pass on the merits of the issue sought to be raised on this motion, on the state of the record before us, that the action of the court in issuing the writ conditional upon the payment of taxes, c., constituted reversible error. In passing, however, our observation is that it seems to us that the court had discretionary power to impose conditions. Cf. St. Mary's Church
v. Mayor of Gloucester, supra; Scott v. Conover,
Upon the argument of this case the query was made as to whether or not the proper procedure would not be an application for a writ of mandamus. So a supplemental motion was made and is argued by the defendant in a reply brief applying for a writ ofmandamus to direct the court below to issue a writ of restitution unconditionally. Or, in the alternative, application is made for the amendment of the remittitur providing that the writ of restitution be so made.
For the reasons stated the motions are denied, with costs. *574
