Johnson v. Johnson 2 N.J.L. 318

[231] D. JOHNSON against J. A. JOHNSON.

ON CEETIOBAEI.

Proceedings void, execution without judgment, costs uncertain.

It appeared by the return made to the writ by the justice, that no state of demand or copy of account, had been delivered to the justice; but that the parties instituted, [*] as the justice states it, an amicable suit in trover, and then referred the cause generally. The referees reported in favor of the plaintiff, fifty-five dollars, and add, and all the costs of a former trial, to abide the event of the suit. Without entering any judgment, the justice issued execution, which execution recited a judgment for $55 debt and 53 cents costs; and then commands the constable to levy, &c., as much as to pay tire debt and all legal costs. On the back of the execution is indorsed, debt $55, costs $11.62 — on which the constable collects for debt, interest and costs, $11.89.

It was moved by the counsel for the plaintiff in certiorari, who was the defendant below, to set aside the proceedings of the justice, for that it did not appear that the costs of a former trial was any way submitted to the referees — nor couj.d it, from the nature of the action, be a controversy in the suit; and even had it been submitted, yet that the report •of referees was defective, and wholly uncertain, in not ascertaining the amount of the costs; that no judgment had been entered by the justice, yet he had issued execution-- and that for an uncertain sum.1

L. H. Stockton, att’y for plaintiff.