Hague v. Warren.

• Decision Date: 13 May 1948
• Docket Number: No. 201.,201.
• Parties: HAGUE v. WARREN.
• Court: New Jersey Supreme Court

59 A.2d 440

HAGUE

v.WARREN.

No. 201.

Court of Errors and Appeals of New Jersey.

May 13, 1948.

Appeal from Court of Chancery.

Suit in equity by Frank Hague against John Warren for discovery in aid of complainant's defenses to a libel action by defendant. From order denying a petition recusing the chancellor and an order denying motion to strike bill of complaint, 137 N.J.Eq. 117, 43 A.2d 861, defendant appeals.

Order denying motion to strike bill reversed and cause remanded, with instructions.

HEHER, BODINE and WACHENFELD, Justices, and DILL, Judge, dissenting.

John Milton and Milton, McNulty, & Augelli, all of Jersey City, for complainant-respondent.

Theodore D. Parsons and Parsons Labrecque, Canzona & Combs, all of Red Bank, for defendant-appellant.

SCHETTINO, Judge.

Complainant, Frank Hague, filed a bill in chancery against the defendant, John Warren, to obtain discovery in aid of conplainant's defenses to an action pending in the Monmouth County Common Pleas Court.

In the law action Warren sought to recover damages for libel. By amended answer, Hague there pleaded among other things that the publications were true, privileged, constituted fair comment and were based upon probable cause.

The bill in chancery sought no relief other than discovery. The bill alleges that ‘the matters herein sought by way of discovery from the defendant herein, John Warren, are sought solely in aid of and are material to the establishment of the matters hereinabove recited and which are set forth as constituting the seven separate defenses of the complainant herein in his amended answer to the aforesaid complaint of the defendant herein. * * *’

Warren moved a recusation against the Chancellor and also to strike the bill. Both motions were denied and the orders thereon are here for review.

Appellant urges a number of grounds. We find one meritorious. Before dealing with it, we shall briefly dispose of the remaining contentions.

Upon the filing of the bill, Vice Chancellor Egan advised an order to show cause with ad interim restraint, returnable before him at Jersey City. Warren moved before Vice Chancellor Berry, whose vicinage included Monmouth County, to dismiss the restraint. Vice Chancellor Berry declined to hear the motion stating that Chancellor Campbell had authorized him to say that prior to the filing of the bill, counsel for Hague had consulted with the Chancellor with respect to vicinage, that the Chancellor considered the cause of action to be transitory and therefore properly presentable to any Vice Chancellor, and that the Chancellor suggested to counsel that the application be made to a Vice Chancellor sitting in Hudson County, mainly because of the crowded condition of Vice Chancellor Berry's calendar.

Thereupon, Warren, on notice, presented to Chancellor Campbell a petition recusing the Chancellor on the ground that he had advised a party to the action prior to the filing of the bill. Warren relied upon R.S. 2:26-193, N.J.S.A. The Chancellor denied the petition. We find no legal error in that ruling.

The vicinage rules were made by the Chancellor for the administration of proceedings in his court. It was within his power to allocate matters among the several vicinages to the end that the work of the court might be more evenly distributed and expeditiously handled. R.S. 2:26-193, N.J.S.A., was not intended to preclude inquiries of the Chancellor with respect to such matters, and the Chancellor's determination of vicinage did not constitute the giving of an opinion within the scope of R.S. 2:26-193, N.J.S.A.

Warren further argues that Vice Chancellor Egan was without jurisdiction because he acted in violation of the rule relating to vicinage, and therefore the restraint should have been vacated and the bill dismissed. What we have already stated with respect to the petition of recusation adequately disposes of this contention.

Warren also urges that Hague was guilty of laches. The summons and complaint in the law action were served on September 4, 1942. On September 22, 1942 Hague demanded particulars. A motion was addressed to the demand and on September 17, 1943 counsel agreed upon a disposition of the motion. On December 2, 1943 a rule to plead issued against Hague and he filed his answer on March 23, 1944.

There then followed applications by Warren for interrogatories and an examination before trial which applications were disposed of by stipulation of counsel on June 15, 1944. Beginning in September, 1944 the trial of the case was adjourned several times upon applications by Hague. On March 3, 1945 Hague filed his amended answer. On March 12, 1945, Warren replied.

The bill for discovery was filed on March 19, 1945. The bill related to the separate defendses which apparently first appeared in the amended answer filed on March 3, 1945. The parties were not at issue with respect to those defenses until Warren replied on March 12, 1945. Since the bill was filed seven days later, Hague obviously was not guilty of laches.

Warren next contends that the bill should have been dismissed because Hague alleged in his bill that he had not sought discovery at law whereas Hague had in fact demanded particulars. The demand for particulars related to the claim made in the complaint and had nothing to do with the discovery sought in chancery in support of the separate defenses. The point made is accordingly without substance.

We now consider the remaining and decisive point.

Warren, objecting in limine to the intervention of chancery, moved to dismiss the the bill on the ground that the complainant had an adequate remedy at law.

The bill does not allege that the remedy at law is inadequate, nor is that claim asserted here. It is not disputed that the court of law is fully competent by way of examination before trial (R.S. 2:27-172 to 177, N.J.S.A.), inspection of books, papers and documents (R.S. 2:27-169 TO 171, N.J.S.A.), and interrogatories (R.S. 2:27-165, to 168, N.J.S.A.) to grant the same measure of relief which equity could give in this case if it may properly take jurisdiction.

Complainant seeks to justify the bill on the ground that the acquisition by courts of law of the power to order discovery did not deprive equity of its original jurisdiction to grant that relief. We agree that originally equity's jurisdiction to grant discovery in aid of an action at law was exclusive; that the assumption by courts of law of jurisdiction orginally equitable did not operate to oust chancery of jurisdiction; and that, upon such assumption by law, the jurisdictions of law and equity in such cases became concurrent.

However, the question presented is not whether equity has jurisdiction of the bill but rather whether equity may properly exercise that jurisdiction in a case in which a court of law has already taken cognizance of the controversy and is itself able to grant complete relief. This question obviously is not controlled by decisions upholding the power of chancery to intervene, either before or after judgment at law, on the basis of an equity which the defendant can not assert in a court of law because of that court's inability to deal with it.

Complainant contends that, if chancery's jurisdiction is conceded, it rests in chancery's ‘discretion’ to determine whether or not that jurisdiction should be exercised, and that this court cannot reverse that determination. In effect, it is contended that this court must ignore developments at law and measure the validity of chancery's action as if we were still sitting in the days when law was impotent in the situation here presented.

With that view, we cannot agree.

Under complainant's view what, if any, is the basis upon which chancery determines whether or not it will exercise its concurrent jurisdiction in a case in which a law court has already taken jurisdiction?

Complainant does not contend that all litigants may, as of right, invoke equity's concurrent jurisdiction in a case in which a court of law has taken cognizance of the controversy. That proposition obviously could not be accepted. The confusion in our judicial system would be utter and the gains of centuries at law would be nullified. If relief in equity is not available as of right to all who seek it, how shall equity determine which prayer to grant and which to deny? If inadequacy of legal remedy is not the test, what principles guides the exercise of that jurisdiction? We can think of none

Logically explored, complainant's contention must lead to the proposition that chancery's power to exercise concurrent jurisdiction, notwithstanding the prior acquisition of jurisdiction by a court of law, is wholly without standard or basis for its exercise. It would follow that chancery, presented with two identical litigations on a given day, could choose to take jurisdiction in one and refuse jurisdiction in the other. Such exercise of power would be arbitrary and foreign to our system of government. There must be some standard for the exercise of judicial power other than whim or caprice.

It is sometimes said that the grant of equitable relief is a matter of grace. If by ‘grace’ is meant ‘favor’, such may have been the rule when chancery was incubated. But under constitutional guarantees of equal protection and due process of law, it can hardly be supposed that the grant or denial of equitable relief may rest upon fancy or favor. All litigants in equity are entitled to the same result in identical situations, and the claim to that result has the statute of a right. ‘For, if the constitutional provision, ‘due process of law,’ or, as it is sometimes called, ‘the law of the land,’ or, as the English phrase it, ‘the rule of law,’ means anything, it should mean equality in the determination of the rights of those affected.' Grobholz v. Merdel Mortgage Investment Co., Err. & App.1934, 115 N.J.Eq. 411, 415, 170 A. 815, 817. Equity, no less than law, is bound to follow established principles. To say that...