JEFFERSON TRUST CO. v. BALK, 121 N.J. Eq. 239 (1937)

189 A. 85

JEFFERSON TRUST COMPANY, complainant-respondent, v. HARRY BALK et al., defendants-appellants.

Court of Errors and Appeals.
Decided January 22d 1937.

The court of errors and appeals modified the foreclosure decree in this case by directing that the amount due on the mortgage be determined, and that the defendants were entitled to be heard before the master to whom the cause had been referred to determine the said amount due. The masters’ summons were served on the defendants, and their solicitor refused to attend before the master. He thereby lost his right to prove any payments on the mortgage.

On appeal from an order of the court of chancery advised by Vice-Chancellor Kays, who filed the following opinion:

“As I understand, the facts in this matter are that the master, as directed by the court of errors and appeals, has reported on the amount due to the complainant on its mortgage. The report was properly filed, a final decree entered, execution issued, and the property is now advertised for sale for August 6th. The court of errors and appeals, in a per curiam filed, held that the amount due on the mortgage remained to be determined, and that the defendants were entitled to be heard before the master to whom the cause had been referred to ascertain and report the amount due on the mortgage. The court then said:

“`The decree should be modified to include such provision.

“`The decree is accordingly modified and, as so modified, affirmed.’

“A master’s summons was served on the defendants, and solicitor for the defendants refused to attend before the master. In my opinion, he thereby lost his right to prove any payments.

“I, therefore, refuse to restrain the sheriff’s sale.”

Page 240

Mr. Edward Stover, for the appellants.

Messrs. Gaede Gaede, for the respondent.

PER CURIAM.

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Kays.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 13.

For reversal — None.