127 A. 158 | N.J. | 1925
A fundamental, which is the only meritorious question involved on the appeal in this case, is that of jurisdiction.
The case was brought in the Supreme Court. The cause of action grew out of a policy of accident insurance to recover the sum of $5,000. The contract of insurance was dated November 8th, 1922, insuring Marion Nathanson not exceeding $5,000 for injuries or death suffered by reason of the ownership, maintenance or use of a Hudson coupe automobile. The defense was a violation of the warranty contained in item five of the accident insurance policy, viz., the purpose of the use of the automobile was for pleasure purposes only.
The case coming on for trial at the January term of the Atlantic courts, 1924, it was on the 9th day of April, 1924, "referred to Hon. William H. Smathers and a jury for trial" by Judge Ralph W.E. Donges. We can take judicial notice of the fact that Ralph W.E. Donges is a Circuit Court judge, and William H. Smathers is a judge of the Common Pleas Court of Atlantic county, New Jersey. The order was entered nunc pro tunc as of January 8th, 1924. The case was, by order of Judge Smathers, set for trial for April 16th, 1924. On that day, when the case was moved for trial, Mr. Reed appeared for the defendant, and objected "to proceeding with the case in that court, because the court is without jurisdiction," citing Emery v. King,
The other points argued, viz., that the proofs produced did not show insolvency under the terms of the policy issued to Marion Nathanson, which was submitted by the trial judge to the jury, as a question of fact, and that insolvency was incorrectly defined by the trial court, we think are without legal merit. They call for no extended discussion.
The judgment based on the verdict of the jury in favor of the plaintiff for $5,000 is affirmed, with costs.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, BLACK, KATZENBACH, CAMPBELL, LLOYD, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 13.
For reversal — None.