Opinion
11-08-1926
MASIONIS v. ROMEL et al.
George Matulewich, of Newark, for complainant. William R. Wilson, of Elizabeth, for defendants.
Bill by Adam Masionis against Jennie Romel and others. Decree for complainant. On motion to open decree. Decree denying motion advised.
George Matulewich, of Newark, for complainant.
William R. Wilson, of Elizabeth, for defendants.
CHURCH, Vice Chancellor. This is a motion to open a decree of foreclosure in order that exceptions to a master's report may be heard and determined and new evidence taken. The facts are as follows:
Theodore J. Harrington, solicitor and of counsel with defendants Jennie Romel and Adolph Romel, her husband, filed an answer to a bill, filed February 13, 1926, to foreclose a bond and mortgage made and executed by said defendants to Anton Czuzas, assignor, in the sum of $2,000, dated March 1, 1924, subsequently assigned October 29, 1925, to Adam Masionis, the assignee and complainant in this suit.
In pursuance to an order bearing date June 19, 1926, it was referred to Lionel P. Kristeller, Esq., one of the masters of the Court of Chancery, to ascertain and report the amount due the complainant, Adam Masionis, for principal and interest upon said mortgage.
At the hearing, defendants Jennie Romel and Adolph Romel, her husband, appeared with their counsel, Theodore J. Harrington, the solicitor of record, on July 2d, last.
The master filed a report in favor of the complainant, Adam Masionis, in the full amount, with interest from July 1, 1925, to which report exceptions were filed.
On August 10, 1926, a notice was served on solicitors of defendants, stating that on August 17, 1926, at the state house, at Trenton, counsel would apply, to the Chancellor to move the argument on the exceptions taken by him to the report filed by the master. On that date complainant's counsel appeared before the Chancellor and on failure of Theodore J. Harrington, Solicitor, to appear, the exceptions were dismissed and a final decree entered and fieri facias issued.
On August 25, 1926, Theodore J. Harrington, solicitor, served on complainant's solicitor a notice of application to take additional testimony, and that on the 31st day of August, 1926, at the state house, at Trenton, he would apply to the Chancellor for such order and for such other order as the court might grant, serving with said notice affidavits of Jennie Romel and Charles Wolinski. Complainant's counsel again appeared before the Chancellor. Solicitor of defendants failed to appear. The Chancellor denied the motion.
On September 27, 1926, William R. Wilson, not the solicitor of record, appeared before me with a petition and affidavits of Adolph Romel, Jennie Romel, and Charles Wolinski, and obtained a rule to show cause returnable October 13, 1926.
After this it was called to my attention that the Chancellor himself denied a similar application to take additional testimony, made August 31, 1926, and I then entered an order vacating the said rule to show cause.
On October 6, 1926, the day set for the sheriff's sale of the mortgaged premises, William R. Wilson again made a similar application before the Chancellor, at the state house, at Trenton. The Chancellor granted a rule to show cause, returnable on the 19th day ofOctober, 1926, why the final decree heretofore entered in this cause should not be opened, and in the same order directed that this matter be referred to me to hear and determine the same.
The dispute is as to whether a payment of $500 was or was not made on this mortgage. The matter was discussed thoroughly before the master, who found that the defendants bad not established the fact of such payment. I have read the testimony taken and I agree with the master. A paper purporting to be a receipt signed by Anton Czuzas was produced, which the defendant insists was signed by him. She called her husband to corroborate her, which he failed to do. Cznzas denies that the receipt is signed by him. Indeed, taking the testimony as a whole, there is a question as to whether this receipt was not manufactured after the foreclosure proceedings were begun. The additional affidavits filed are entirely too vague to be of any value.
The defendants have had their day in court and they failed to convince the master as to the authenticity of the so-called receipt.
The evidence, as I have said, does not convince me, either. Any further evidence now produced after the proceedings have been practically completed would in this case, I think, be open to grave suspicion.
I shall advise a decree denying the motion to reopen.