Hygrade Cut Fabric Co., Inc. v. United States Stores Corp.

• Decision Date: 04 February 1929
• Docket Number: No. 49.,49.
• Citation: 144 A. 605
• Parties: HYGRADE CUT FABRIC CO., Inc. v. UNITED STATES STORES CORPORATION.
• Court: New Jersey Supreme Court

144 A. 605

HYGRADE CUT FABRIC CO., Inc.

v. UNITED STATES STORES CORPORATION.

No. 49.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1929.

Syllabus by the Court.

Appeal from Circuit Court, Essex County.

Action by the Hygrade Cut Fabric Company, Inc., against the United States Stores Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Raymond H. Berry, of Newark, for appellant.

Louis A. Fast, of Newark, for respondent.

WALKER, Chancellor. This was an action at law upon a book account for damages of $1,400, with interest due from October 1, 1925, and, also, for sale and delivery of the goods included in the book account. The plaintiff had Judgment April 20, 1928, for $300.45, for damages and costs by the jury on a directed verdict. On May 15, 1928, defendant filed a notice and grounds of appeal. This appeal was from the judgment mentioned. The appellant previously assumed to file an appeal, November 18, 1926, from a rule made in the circuit court October 4, 1926; and respondent alleges that the same was by order of this court dismissed. Neither the notice nor the order can be found on file with the clerk of this court. This alleged order is printed in the brief of the respondent, who sets out a purported copy of it, as follows:

"Application having been made for an order dismissing the appeal of the United States Stores Corporation, from an Order entered in the Essex County Circuit Court on October 4th, 1926, for lack of prosecution, and motion having been made in open Court at the opening of the May term, it is therefore on motion of Fast and Fast, attorneys for the Appellee Hygrade Cut Fabric Co., Inc.

"Ordered that the appeal of United States Stores Corporation, be and the same is hereby dismissed."

It is not stated that the motion was on notice, or that counsel for defendant-appellant was present. However, it is assumed that the motion was regularly made and granted. But. let it be observed that what was dismissed was not the appeal from the judgment of April 20, 1928, but the appeal from the rule or order of October 4, 1926, which was not a final judgment only an interlocutory one, and therefore not appealable at all. An appeal cannot be effective until after final judgment. Van Hoogenstyn v. D., L. & W. R. R. Co., 90 N. J. Law, 189, 100 A. 232. And an appeal so taken will be dismissed as prematurely brought. Denholtz v. Donner, Denholtz Co., 96 N. J. Law, 545, 115 A. 351. See, also, Salmons v. Rugyeri, 103 N. J. Law, 596, 137 A. 568. The appeal from the interlocutory rule or order was properly dismissed, even if for a wrong reason, assuming it was dismissed; if not, it will be ignored as illegal.

The grounds of appeal are 8 in number, and respondent objects in limine that, as Nos. 6, 7, and 8 are not argued, they are to be considered as abandoned. This is so. This court held in Reinfeld v. Laden, 98 N. J. Law, 709, 121 A. 445, that: "It is the settled and accepted practice that grounds of appeal not argued in the brief will be taken as waived or abandoned"—citing cases.

Another thing: "Blanket" grounds of appeal (ones entirely general) are inadequate to raise any ruling for review. Assignments of error (grounds of appeal under existing practice) must be specific, and definitely point out a ground of error, or they will not be considered. Valenti v. Blessington, 96 N. J. Law, 498, 115 A. 377. "Counsel must present his assignments of error in such form that each of them shall point out specifically the error relied on." State v. Browne, 143 A. 810, 7 N. J. Misc. R. 1.

This ruling is fatal to ground No. 1, which is: "1. That the Circuit Court was without jurisdiction in trying said cause and in entering judgment in the same." It does not point out wherein the trial court was without jurisdiction.

This is also fatal to ground No. 3, which is: "3. That the Circuit Court erred in attempting to use discretion in a matter which under the rules of Court and principles of the common law were purely ministerial." Because it does not point out wherein the court below attempted to use discretion in matter which, under the rules of court and principles of the common law, was purely ministerial (even if that matter be appealable).

The same doctrine applies to ground No. 4, which is: "4. That the Circuit Court erred in denying rights to the defendant-appellant, which pursuant to the law vested in said appellant."

Doubtless no one will pretend that any vested right of defendant, which is said to be denied it, is here pointed out.

That leaves for consideration and determination grounds Nos. 2 and 5, which are as follows:

"2. That the Circuit Court erred in entering an order filed November 4, 1926, allowing the appellee to redeposit with the Clerk of the Court moneys formerly paid into court by the defendant and which the plaintiff voluntarily had taken out by order of the Court upon plaintiff's own application to the Court for an order to do the same, which order the Circuit Court granted.

"5. That the Circuit Court erred in refusing to grant the defendant's motion to nonsuit."

The appellant appears to accomplish all he urges for reversal in the grounds of appeal Nos. 2 and 5; nevertheless, the record should not have been incumbered by the insufficient grounds which do not raise arguable questions as above pointed out.

The facts upon which this case was founded were succinctly these: Plaintiff shipped to defendant 700 dozen aprons on consignment, at $2 per dozen, return to be made in 60 or 90 days. The defendant sold 307 dozen for plaintiff, and, before this action was commenced, alleged that it returned 393 dozen, and tendered to the plaintiff $614 in full payment of its indebtedness to plaintiff, but plaintiff refused to receive the same which was tendered before action commenced. Defendant in its answer admitted this, and brought the $614 into court, and paid the same to the clerk thereof under a rule for that purpose, a copy of which was annexed to the answer. Plaintiff claimed to have received only 262,1/6 dozen aprons, and it is therefore entitled to recover $875.66 instead of the $614 tendered, making a balance of $261.66, over and above the amount paid into...