Cole v. Hess

11 Citing cases

  1. State Board v. District Court

    249 P.2d 146 (Colo. 1952)   Cited 5 times

    The net result of these decisions leads to confusion. In the case of Cole v. Hess, 99 Colo. 417, 63 P.2d 882, we said; "We have held where a motion for a change of venue, which should have been granted, is overruled, the point is waived if the party proceeds without exception or further objection. O'Rourke v. O'Rourke, 58 Colo. 300, 144 Pac. 890. But no reference is therein made to section 422 of our Code of Civil Procedure, page 179 C.L. 1921, which provides that 'No exceptions need be taken to * * * orders * * * sustaining or overruling written motions * * * for changes of place of trial,' and it was apparently overlooked.

  2. Matarrese v. Matarrese

    140 N.J. Eq. 381 (N.J. 1947)

    It is fundamental that in every proceeding of a judicial nature, it is imperative that the party whose rights are to be affected should have an opportunity of making a defense. Hess v. Cole, 23 N.J. Law 116. And, where a party is for any reason incapacitated, the presence of a guardian before the court to represent such person is essential: In reMartin, 86 N.J. Eq. 265.

  3. Lommason v. the Washington Trust Co.

    138 N.J. Eq. 206 (N.J. 1946)   Cited 3 times

    "It is fundamental that in every proceeding of a judicial nature it is essential that the person whose rights are to be effected should be a party to the proceeding and have an opportunity of making a defense. "This rule was declared with great emphasis and comprehensiveness by Chief-Justice Green in Hess v. Cole,23 N.J. Law 116 (at p. 124). There a decree of the Orphans Court, setting off dower, was declared void, upon the ground that a party whose interests were affected by it had not been served with notice of the intended application for the appointment of commissioners, as required by the statute in that behalf.

  4. East Paterson v. Karkus

    136 N.J. Eq. 286 (N.J. 1945)   Cited 14 times

    Such notice is ordinarily indispensable. Pierson v. Hitchner, 25 N.J. Eq. 129; In reMartin, 86 N.J. Eq. 265; 98 Atl. Rep. 510; Hess v. Cole,23 N.J. Law 116; Dickinson's Pl. Pr. 54, footnote; 1 Daniell's Pl. Pr. 531, *534. In some instances there may have been a previous judgment of incompetency.

  5. Fawcett v. Weaver

    163 So. 561 (Fla. 1935)   Cited 4 times

    "The power of the court to enter judgments nunc pro tunc is universally conceded. It is one which has been recognized and exercised from ancient times and as a part of the court's common law jurisdiction. See 1 Black on Judgments (2nd ed.) Sec. 1, 126; Mohun's Case, 6 Mod. 59; Mayor of Norwich v. Berry, 4 Burr, 2277; Evans v. Rees, 12 Adol. E. 167 (40 Eng. Com. Law, 46); Mitchell v. Overman, 103 U.S. 62; Sanderson v. United States, 210 U.S. 168, 28 Sup. Ct. Rep. 661; Hess v. Cole, 23 N.J.L. 116. The general principle is that whenever delay in entering a judgment is caused by the action of the court, judgment nunc pro tunc will be allowed as of the time when the party would otherwise have been entitled to it if justice requires it. See McNamara v. New York, L.E. W.R. Co., 56 N.J.L. 56, 28 A. 313; Ferrell v. Hales, 119 N.C. 199, 25 S.E. Rep. 821; 15 R.C.L. pp. 622-629.

  6. Hinners v. Banville

    114 N.J. Eq. 348 (N.J. 1933)   Cited 46 times

    It is fundamental that in every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding, and have an opportunity of making defense. Hess v. Cole, 23 N.J. Law 116, 124. "Due process of law" signifies a right to be heard in one's defense. Hovey v. Elliott, 167 U.S. 409; 17 Sup. Ct. 841;42 L.Ed. 215.

  7. Niland v. Niland

    96 N.J. Eq. 438 (N.J. 1924)   Cited 3 times
    In Niland v. Niland, 96 N.J. Eq. 438 (Ch. 1924), Chancellor Walker, sitting as a trial judge, ruled, at least preliminarily, that the parents of an underage woman who went through a marriage ceremony did not have standing to seek an annulment of her marriage.

    But, as it is a general principle that no person shall be condemned unheard, I am of opinion that I should give the petitioners an opportunity to show, if they can, why they should be permitted to prosecute this cause, a right to do which they have asserted by the filing of the petition. In Hess v. Cole, 23 N.J. Law 116, Chief-Justice Green observed (at p. 124) that it is an inflexible rule of law, as well as the clear dictate of justice, that no man shall be deprived of his rights without an opportunity of being heard. See, also, In re Martin, 86 N.J. Eq. 265.

  8. Grant v. Greene

    59 Misc. 1 (N.Y. Misc. 1908)

    In Mutual Life Ins. Co. v. Primer, 43 N.J. Eq. 52, the court say: "While it is a fundamental principle of every civilized code of laws, that no person shall be deprived of his rights, either of person or property, by judicial sentence, without an opportunity of being heard in his defense; yet, the method by which a defendant shall be notified of a suit instituted against him, so that the court may acquire juristion over him — whether the notice shall be actual or constructive — is a subject over which the law making power of each government has supreme control. Hess v. Cole, 3 Zab. 116; Moulin v. Insurance Co., 4 Zab. 222."

  9. Matarrese v. Matarrese.

    54 A.2d 771 (Ch. Div. 1947)

    It is fundamental that in every proceeding of a judicial nature, it is imperative that the party whose rights are to be affected should have an opportunity of making a defense. Hess v. Cole, 23 N.J.L. 116. And, where a party is for any reason incapacitated, the presence of a guardian before the Court to represent such person is essential: In re Martin, 86 N.J.Eq. 265, 98 A. 510. True, the appointment of a guardian ad litem is not a jurisdictional prerequisite, and, where no injustice results from the non-appointment, the Court is under no obligation to vacate its judgment.

  10. Lommason v. Wash. Trust Co.

    47 A.2d 323 (Ch. Div. 1946)

    ‘It is fundamental that in every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding and have an opportunity of making a defense. ‘This rule was declared with great emphasis and comprehensiveness by Chief Justice Green in Hess v. Cole, 23 N.J.L. 116, at page 124. There a decree of the orphans' court, setting off dower, was declared void, upon the ground that a party whose interests were affected by it had not been served with notice of the intended application for the appointment of commissioners, as required by the statute in that behalf.