Borough of Eatontown v. Hendrickson

• Decision Date: 22 May 1930
• Docket Number: No. 429.,429.
• Parties: BOROUGH OF EATONTOWN v. HENDRICKSON.
• Court: New Jersey Supreme Court

150 A. 584

BOROUGH OF EATONTOWN

v. HENDRICKSON.

No. 429.

Supreme Court of New Jersey.

May 22, 1930.

Syllabus by the Court.

In a Supreme Court issue referred at the circuit, in which the right to a jury trial has been reserved by one party, the other party desiring judgment on the report of the referee should file such report in the office of the clerk of the Supreme Court with the postea, and as part thereof, at the next term of the Supreme Court, and give written notice of such filing to the other party, who to obtain a jury trial must file his exceptions within twenty days after such notice and make his demand of jury trial to the court within that term.

Syllabus by the Court.

The practice established by statute and rules, of filing postea on short notice, or, still more recently, of filing it without notice and entering judgment in cases where there has been a verdict of a jury, does not apply to cases of reference, which are not included in either rule or statute, applicable to verdicts.

Action by Borough of Eatontown against Edmund P. Hendrickson, impleaded with others. On motion to confirm report of referee and enter judgment thereon, and countermotion to refer the cause back to the circuit court for trial by jury.

Motion to confirm report and enter judgment denied.

See, also, Borough of Eatontown v. ætna Casualty & Surety Co., 148 A. 5, 7 N. J. Misc. R. 1094.

Argued January term, 1930, before PARKER, BLACK, and BODINE, JJ.

Arthur T. Vanderbilt, of Newark, for plaintiff.

James D. Carpenter, Jr, of Jersey City, for defendant.

PARKER, J.

Apart from technical niceties of practice under sections 155 and 156 of the Practice Act of 1903 (3 Comp. St. 1910, pp. 4101, 4102, §§ 155, 156), and Rules 100 and 101 of the Supreme Court, relating to trial of causes before referees, we have the further difficulty that, after the cause had been referred, the attorneys of record for defendant intrusted the conduct of the trial before the referee to outside counsel; who thereafter corresponded and exchanged notices in the cause with plaintiff's attorney, apparently without informing defendant's attorneys of all that was going on, in so much that now the latter in effect repudiate his agency to give and receive notices and make stipulations outside of the trial. The intentions of the special counsel were of course of the best, but we feel that the client should not be prejudiced in this regard. As a result, we begin with the application on November 9, 1929 to Judge Lawrence, sitting in the Monmouth circuit, on the one hand for a jury trial, and on the other for confirmation. He held, relying on Halsey v. Paulison, 36 N. J. Law, 406, that the attempted filing of the referee's report August 6, 1929, was nugatory because it was not accompanied by a postea. We concur in his views, which are reported in 148 A. 5, 7 N. J. Misc. R. 1094, and were filed November 12, 1929. On November 25 a postea, duly signed and with the report annexed, was received by the clerk of this court and marked filed by him. It does not appear that any written notice of this "filing" was given to defendant as required by Rule 100; but apparently defendant learned of it, for on December 11, within the twenty days provided by section 155, defendant filed written exceptions and a written demand for trial by jury, but gave no notice of such filing to the plaintiff, nor did he make his demand on the court, as intimated in Halsey v. Paulison, supra. In this posture of affairs the present motions to enter judgment, and to send back the cause for a jury trial, were made before us on the opening day of the January term, 1930.

Counsel urge that Rule 101 is inconsistent with and to that extent supersedes section 155; and that the report may be filed without a postea at any time, and at the same term, and within twenty days after notice of filing such report, a party who has reserved his right to a jury trial in the statutory manner (section 155) must make his demand of the court or be thereafter barred of a jury trial. As we have said, Judge Lawrence correctly held that the filing was no filing without a postea. This in turn harks back to the old practice relating to posteas,...