Defendant obtained judgment on a bond given him by complainant by virtue of a warrant of attorney contained in the bond. Complainant's bill alleges that he had performed those conditions which, if complied with, were to discharge his liability under the bond, and therefore execution under the judgment should be restrained and the judgment itself satisfied of record. Held, that the matters set up in the bill all arose prior to the entry of judgment and were, if true and legally sufficient, proper as an answer to the suit at law, even though fraud (which is not alleged) were involved. They should have been presented on application to open the judgment and for leave to file answer.
The opinion of the court was delivered by LLOYD, J.
While the bill in this case may perhaps have been properly dismissed on meritorious grounds, it should have been dismissed for want of jurisdiction. The basis of the suit was in substance that the complainants and defendants had agreed that if certain obligations imposed by oral agreement were performed by the complainants they should be discharged from liability under the bond which was the instrument upon which defendants' judgment was obtained; that complainants had complied with these obligations, but that notwithstanding such compliance the defendants had entered the judgment on which it is now sought to have execution restrained and the judgment itself satisfied of record.
Judgments of courts of competent jurisdiction cannot be so lightly disposed of. All the matters alleged in the bill were, if true and legally sufficient, proper as an answer to the suit at law and this even though fraud (which is not alleged) were involved. Raimondi v. Bianchi, 102 N.J. Eq. 254, where the limits of chancery jurisdiction in such cases are set forth in the opinion of (then) Mr. Justice Campbell, citing earlier authorities. These facts arose prior to the entry of the judgment and should have been presented to the law court on application to open (the judgment having been entered by virtue of a warrant of attorney contained in the bond) and for leave to file an answer. It was for the law court then to determine whether the merits of the application, in view of the long delay in its presentation, justified opening the judgment and affording consequent opportunity to defend.
The decree of dismissal is affirmed on the ground set forth above.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.