Mershon v. Castree
Supreme Court of New Jersey
This was an ejectment suit, to which the statutory plea. The plaintiff moved to strike out the defence on the ground that the suit was on a mortgage to which, under the circumstances, there could be no legal opposition, and presented affidavits to that effect. The sole contention of the defendant was that the only action that a mortgagee could take on his bond and mortgage was to foreclose the latter.
Read the full summary
This was an ejectment suit, to which the statutory plea. The plaintiff moved to strike out the defence on the ground that the suit was on a mortgage to which, under the circumstances, there could be no legal opposition, and presented affidavits to that effect. The sole contention of the defendant was that the only action that a mortgagee could take on his bond and mortgage was to foreclose the latter. This plea was struck out by the Monmouth County Circuit Court as a sham and frivolous plea. To that decision this writ of error was brought. Diminution having been alleged, the proceedings at…
1Opinion of the Court
The opinion of the court was delivered by •
Beasley, Chief Justice.
This writ of error must be dismissed on two grounds.
The first of these is that the record is essentially incomplete. It consists of a copy of the pleadings, and the proceedings on the motion to strike out the plea. The papers do not include the record of a judgment. This court could not affirm or reverse a judgment that remains in the court below.
The second objection is as radical as this first one, and is more incurable. It is this, that a rule striking out a plea is not subject to review in error. This is expressly decided by…
2Cited by5 opinions
- Bovay v. FullerCourt of Appeals for the Eighth Circuit · 1933
- Weatherby v. SparksSupreme Court of New Jersey · 1899
- Stanbery v. BakerNew Jersey Court of Chancery · 1897
- Knight v. Cape May Sand Co.Supreme Court of New Jersey · 1911
- Steadfast Building & Loan Ass'n v. PloskiNew Jersey Circuit Court · 1934