12 N.J. Misc. 826 | Hudson Cty. Cir. Ct., N.J. | 1934
The defendant moves to vacate an order heretofore entered permitting one, Bonnelly, to file as applying creditor an alleged claim against the defendant and secondly that the claim of Bonnelly is not liquidated and therefore not cognizable before this court. From the proofs it appears that Adrian Bonnelly, a member of the bar of the State of Pennsylvania, performed legal services for the defendant, Camera. The services were of a miscellaneous character and evidently the charges made therefor were not-ascertained by agreement. The affiant, Bonnelly, alleges that the charge and reasonable value of such services was $2,500. Bonnelly, in March of 1931, undertook to collect his claim against the defendant, Camera, by issuing an attachment out of a court of the State of Pennsylvania against property alleged to be owned by Camera and located in that state. The attachment resulted in a judgment in favor of Bonnelly against Camera for the sum of $3,113.50. It appears that Camera did not enter an appearance in the Pennsylvania
“Any creditor of the defendant, whether his debt be due or not, upon filing with the clerk an affidavit made by himself or his agent that the defendant owes to him a debt, stating the amount, may enter in the minutes of the court at any time, as of course, a rule admitting him as an applying creditor under the attachment.”
If there is excluded from the affidavit of the applying creditor the reference to the judgment obtained in the State-of Pennsylvania there remains in his affidavit proof in effect, that the defendant is indebted to him for a reasonable sum for services rendered. The claim is not a liquidated claim. The statute requires the applying creditor to state the amount, of his claim. In the case of Smith v. Warden, 35 N. J. L. 346 (at p. 350), it was held that the applying creditor is only required to make and file an affidavit that the defendant in attachment owes him “a certain sum,” while section 6 of the Attachment act (1901), permits the applying creditor to file his debt, “whether his debt be due or not.” Considering the language used in the case of Smith v. Warden, supra, at-first glance it would appear that the phrase “a certain sum” means that the claim should be liquidated. A reference to-the Attachment act from its early enactment in this state and the amendments thereto and supplements thereof leads-to the conclusion that at the time the opinion was rendered in the Smith case the language under the Attachment act' concerning applying creditors was different from the Attachment act that effects this proceeding. According to the case of Hanness v. Smith (1848), 21 Id. 497, in construing the-Attachment act then in effect it was held:
“There is nothing in the statute which limits the judgment to the amount of the claim filed nor indeed does it require the creditor to specify or even file the amount of his-
In the year 1854 a supplement was enacted to the Attachment act providing (laws of 1109-1868, page 45, section 2) :
“2. It shall be lawful for any creditor or creditors of any defendant in attachment, upon filing with the clerk an affidavit that the defendant or defendants in attachment owes unto him or them a certain sum, to be therein specified, which affidavit shall be made by such creditor or his agent, to enter at any time a rule in the minutes of the court out of which a writ of attachment may have been issued, admitting such creditor or creditors as creditor or creditors under such attachment, and which said rule shall have the same force and effect as though the same had been entered in open court.”
This supplement was in effect when the opinion in Smith v. Warden was handed down. The court in that case evidently referred to the very language of the statute when it stated that an applying creditor should file an affidavit declaring that “a certain sum” was due to him. The Attachment act of 190.1, section 6, page 160, does not contain this language as to the sum being certain. This act provides in effect that any creditor whether his debt is due or not may file an affidavit that the defendant owes him a debt “stating the amount” and thereupon may enter a rule in the minutes of the court admitting the creditor as an applying creditor. Generally an attachment suit is considered a harsh remedy. In many jurisdictions an attaching creditor is regarded with less favor than he formerly was when an attachment of a debtor’s property was the only mode of compelling an appropriation of it to the payment of his debts. This is particularly true in view of the fact that an attaching creditor gains a preference over other creditors. It is the policy of the law in very many cases, especially where there is insolvency, to favor an equal distribution of the effects of a debtor among all of his creditors. It is for this reason that an aftaching creditor was held to comply strictly with the Attach
The motion to vacate the order heretofore admitting Bonnelly as an applying creditor will be denied.