Corn v. Kaplan

• Decision Date: 17 October 1927
• Docket Number: No. 45.,45.
• Citation: 139 A. 12
• Parties: CORN v. KAPLAN et al.
• Court: New Jersey Supreme Court

139 A. 12

CORN

v. KAPLAN et al.

No. 45.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1927.

Appeal from Supreme Court,

Action by Joseph J. Corn against Harry Kaplan and others. Judgment for defendant was affirmed by the Supreme Court (130 A. 887), and plaintiff appeals. Judgment of the Supreme Court reversed, and venire de novo awarded.

Corn & Silverman, of Newark, for appellant.

Stein, McGlynn & Hannoch, of Newark, for respondents.

KALISCH, J. This is an appeal from a judgment of the Supreme Court affirming a judgment of the Essex county circuit court entered upon the verdict of a Jury in favor of the defendant respondent against the plaintiff appellant.

The legal question raised upon the appeal in the Supreme Court is succinctly stated in its opinion (130 A. 887) as follows:

"The question sought to be reviewed is the action of the clerk in refusing to accept a verdict rendered by the jury, which resulted in the jury retiring for further consideration of the case after receiving from the clerk the pleadings in the case. The record contains a stipulation to the effect that the record to be submitted to this court shall contain only said stipulation, notice of appeal, complaint, answer, reply, judgment, and transcript of the stenographer's notes on a return of a rule to show cause allowed by the trial judge to the defendant"

In determining the question the Supreme Court held:

"If the proceedings in the circuit court amounted to a rule to show cause why a new trial should not be granted, the action of the judge was equivalent to discharging the rule. From this discretionary action of the court no appeal will lie. * * * The present action, as stated, was in the circuit court. We cannot consider the question raised, if it be an appeal, because of the lack of an exception. From the action of the trial judge in discharging the rule no appeal will lie for the reason stated. This leads us to an affirmance of the judgment of the circuit court."

In reaching this result from the record before it, the Supreme Court was obviously mistaken and fell into error. While it is true, as disclosed by the record, that counsel for the plaintiff made a motion for a new trial on the ground that the first verdict should have been received by the clerk, it further appears that the trial judge in this connection said:

"Regarding this as a motion to set aside the verdict because of irregularity, the motion will be denied, but without prejudice, to raise the same point upon appeal if it is decided to appeal from the evidence that has been introduced, and the return of the court can be made precisely in accordance with the testimony given by the clerk."

It is equally true that counsel for appellant took no formal exception to what the trial judge said, but from what occurred we do not perceive why counsel should have done so, since the trial court virtually anticipated an exception to his ruling when he told counsel that the motion would be denied without pejudice, if it was decided to appeal, thus practically granting an exception if an appeal was decided upon by counsel. But, independently of this circumstance, a plaintiff is entitled to appeal from a record in a cause upon the ground of its irregularity, irrespective of the nature of the proceeding adopted, to attain that end in the court of the first instance.

In Knight v. Cape May Sand Co., 83 N. J. Law, 597, this court, at page 599 (83 A. 965), said:

"While the general rule is that a writ of error will not lie to review the granting or discharging of a rule to show cause, it has always been confined to cases where the action of the court was founded solely upon the exercise of its discretionary power, but not to a case where the effect of the granting or discharging of the rule is dispositive of the entire case—in that its action is tantamount to the rendering of a final judgment. The mere fact that the proceeding was by a rule to show cause does not and cannot affect the real function of the writ of error; that is, to bring the judgment record under review. The rule to show cause was simply an orderly procedure by which to bring to the knowledge of the court circumstances and facts under which the judgment was entered. The same object could have been obtained by an application to the court to vacate the judgment, without an intervening rule to show cause. It is clear that, if there was a defect on the face of the judgment record and an application had been made to vacate it and the court had in the first instance granted a rule to show cause and subsequently either discharged or made the rule absolute, the action of the court could not have operated to prevent the party prejudiced by such ruling to have the validity of such judgment brought under review by writ of error. And, where the invalidity of the judgment can only be made to appear by matters dehors the record, as in the case sub judice, no different rule is logically applicable."

The appellant was entitled to appeal from the judgment entered against him, even though he took no formal exception to the action of the trial judge in refusing to set aside the judgment. It is an elementary legal proposition that error may be assigned on the record. This is the precise thing that has been done in the instant case. Where the error is not apparent upon the face of the record, but is alleged to exist in matters dehors the record and related thereto, the common practice is to apply to the reviewing tribunal for a writ of certiorari to bring before it, in aid of the record, the outbranches thereof. In the present case, counsel, instead of resorting to a writ of certiorari for the purpose indicated, were relieved from pursuing such a course because they entered into a written stipulation that the "transcript of stenographer's notes on return of rule to set aside judgment, including findings and decision of the court," together with other matters stated in the stipulation, shall be the statement of the case upon appeal.

This outbranch of the record was before the Supreme Court and is now before u...