Opinion
09-14-1903
MERRITT v. JORDAN.
Samuel M. Roberts, for complainant. Frederick A. Rex and Judge Pancoast, for defendant.
Bill by Enoch C. Merritt against Patrick J. Jordan. Application to stay sale under execution pending appeal. Granted.
Samuel M. Roberts, for complainant.
Frederick A. Rex and Judge Pancoast, for defendant.
GREY, V. C. (orally). I am satisfied, without hearing counsel for the defendant, that there should be a stay m this case pending the appeal. The cause has been strongly litigated. Claims and counterclaims have been in dispute between the complainant and defendant as to the amount of money due from one to the other. The vice chancellor who heard the case was of opinion that there ought to be an account stated before a master. A reference was made, and the parties appeared before a master and strenuously fought there, each contending that he owed nothing to the other, and that the other was indebted to him. The master reported favorably to the complainant. Exceptions were taken to that report, and upon the coming in of the exceptions they were just as strenuously fought, always on the single question whether any money was due from one to the other. The master's report was subsequently affirmed by final decree. The decree was made on January 29, 1902, and, on the 4th of February next after, an appeal was taken. The defendant who took the appeal was of the opinion that the condition of the record was not broad enough to enable him to show to the Court of Appeals all that he thought was necessary to present his equity, and so he withdrew the appeal, not for the purpose of abandoning it, but for the purpose of broadening it by a rehearing if he could get it. For some reason which does not appear by any record, the rehearing was refused. So that the case then stood, that there was a decree made on January 29th, from which an appeal was taken on the 4th day of February, which was abandoned solely for the purpose of a rehearing; the rehearing was refused, and either on that day or the next day the appeal was reinstated. The complainant in the suit, who has the master's report, and the decree in his favor, has is sued execution. He has on that execution secured a levy. There does not seem to be any question that the property levied on is fully sufficient to satisfy that $1,100, the amount due the complainant. The present application does not seek to discharge the defendant's goods or lands from the lien of the levy, but to stay the realization of the money by sale of the defendant's property until the defendant has brought the present appeal to a hearing in the Court of Appeals, to ascertain whether the vice chancellor was mistaken in his decision. It seems to me that, reserving the lien of the complainant under his levy, the defendant has an equity to have the sale of his property stayed. Otherwise, if the complainant is allowed to prosecute this execution, and to sell out the defendant's property, he may put the proceeds in his pocket, and when the defendant takes his appeal at the next term of court, if he succeeds in having the vice chancellor's decree reversed, the benefit of his appeal will be defeated. He would have to seek restitution, and take his chances of finding the complainant and getting his money back. It is quite obvious that such a course ought not to be allowed, unless there is some appearance of bad faith on the part of the appellant. The Court of Appeals recognized this in the case cited by counsel for complainant. Allen v. Hopper, 24 N. J. Law, 514. Judge Elmer says: "I am entirely satisfied that the court out of which the execution issues is the proper tribunal to determine whether it is apparent that the writ of error was issued in bad faith, or for the mere purpose of delay; otherwise the execution would always be delayed until the writ of error could be returned." The "otherwise" here referred to is the usual practice in case of appeal. It would be most extraordinary to permit a party who is successful below to realize pending an appeal the whole fruit of the litigation, and put the money in his pocket, so that when the appeal was subsequently heard the decree of the appellate court, if favorable to the appellant, would be of little value. The effort for a rehearing, and other steps which have occasioned delay in presenting the appeal, were, I think, taken in good faith, and with reasonable diligence, for the purpose of exhibiting the whole case as claimed by the appellant.
An order should be made staying advertisement or sale under the execution, and any further proceedings thereon; the lien of the levy to remain unaffected pending the appeal, provided the appellant shall set the cause down and have it on the list for hearing at the next stated term of the Court of Appeals. If he does not do that, I shall feel at liberty to revoke this order.