Summary
In DeConza, the decedent's widow applied for administration and a caveat was filed by the decedent's sister claiming the marriage was void because of decedent's lack of mental capacity to contract a marriage.
Summary of this case from In re Estate of SantolinoOpinion
Submitted January 25, 1935 —
Decided April 4, 1935.
Proceedings taken in the Common Pleas under the supplement of 1915, page 182, to the Executions act, by way of garnishing a debt due to the defendant in execution, are reviewable properly by certiorari and not by appeal.
On appeal from Mercer Common Pleas.
Before BROGAN, CHIEF JUSTICE, and Justice PARKER.
For the appellant, Charles Quinn.
For the respondents, administrators cum testamento annexo of Roger Henry, deceased, William Reich.
The plaintiff-appellant recovered a judgment in the Mercer Common Pleas against the administrators cum testamento annexo of the estate of Roger Henry, deceased, on a debt of said deceased. Execution issued on the judgment and was levied on a bank balance standing to the credit of the estate, as a "right and credit" of said estate. Pamph. L. 1915, p. 182, §§ 1 and 2. Under section 9 of the same act, the court made an order that the bank show cause why the balance should not be applied to satisfaction of the execution. The administrators resisted the application, and the court made an order discharging the rule to show cause, and quashing the execution. The appeal is from this order.
We find it unnecessary to go into the merits, as the rule is settled that a review of these proceedings in aid of execution must be by certiorari. Gordon v. Pannaci, 90 N.J.L. 392. The case of Eames v. Stiles, 31 Id. 490, cited for appellant, is not applicable, for the reason that the review in that case was in the Court of Errors and Appeals, which does not review by certiorari. In the present case the Supreme Court is asked to review a proceeding not according to the course of the common law, and in an inferior tribunal. Such review on well settled principles is by certiorari.
The appeal will be dismissed, with costs, but without prejudice to an application for certiorari.