In re Beam

• Decision Date: 07 June 1922
• Citation: 117 A. 613
• Parties: In re BEAM et al.
• Court: New Jersey Supreme Court

117 A. 613

In re BEAM et al.

Prerogative Court of New Jersey.

June 7, 1922.

(Syllabus by the Court.)

From an order of the orphans' court of the county of Passaic dismissing an order to show cause, Edward Beam and others have appealed to the Prerogative Court. On motion to strike out an answer as sham and also as frivolous. Order motion to strike out answer nunc pro tunc as of the date when the motion was submitted.

John C. Beam, of Jersey City, and William B. Beam, for the motion.

Griggs & Harding, of Paterson, opposed.

WALKER, Ordinary. An order to show cause was made by the orphans' court of the county of Passaic on March 28, 1922, returnable April 1, 1922, and on April 7, i922, the court filed a memorandum which concluded: "The order to show cause will therefore be discharged without costs." On April 8th a notice of appeal was filed in the orphans' court in which it is stated that Edward Beam, John C. Beam, and William B. Beam, substituted trustees, etc., thereby appeal to the Prerogative Court from an order entered therein on April 7, 1922, discharging the order to show cause above mentioned. Petition of appeal was duly filed, and the respondent answered, denying that the Passaic orphans' court on April 7, 1922, entered an order discharging the order to show cause. This is the fact. No such order appears in the transcript, nor has any been returned with the papers. The appellants, who are laymen appearing for themselves, seem to have misapprehended the effect of a paper filed by the presiding judge of the orphans' court denominated "memorandum." In this they were perhaps misled by a letter from the judge's secretary in which the memorandum was referred to as an order. This may be unfortunate, but I cannot turn a memorandum into an order because some one has denominated it an order when in fact it is an opinion of the court. I have no such power.

The respondents having prevailed, they should have entered an appropriate order; but, if the appellants were impatient of delay in that regard, they could have given notice to the respondents that they would apply to the court to enter such an order in their name, serving them with a copy of the proposed order, which the court would doubtless have entered, especially if on the return day the respondents did not appear with an order of their own.

The appellants argue that every direction of a court or judge made or entered in writing and not included in a judgment or decree is an order. The answer to this contention is that a memorandum merely stating the conclusions of a judge on an issue before him, and giving direction as to an order, judgment, or decree which may be entered, is an opinion, whether labeled "memorandum" or "conclusions" or "opinion," and from an opinion no appeal lies.

Errors may be assigned upon matters in the record only, and not upon the reasoning (opinion) which induced the rendering of the judgment. McCarty v. West Hoboken, 93 N. J. Law, 247, 107 Atl. 265; Birtwistle v. Pub. Serv. Ry. Co., 94 N. J. Law, 407, 112 Atl. 193. The doctrine, of course, applies equally to appeals.

The respondents make the point in limine that there is no practice in the Prerogative Court under which an answer may be stricken out as sham or frivolous. I think the law is the other way, and that this court has inherent power to order false pleadings stricken out, whether in causes pending before it as a court of original jurisdiction or as an appellate tribunal. Courts of general jurisdiction have power to strike out pleadings as sham or frivolous. And it has been their immemorial practice to do so. Anonymous, 7 N. J. Law, 160. The Court of Chancery has inherent power to strike out a frivolous demurrer. Stanbery v. Baker, 55 N. J. Eq. 270, 37 Atl. 351. And the Court of Errors and Appeals will strike out an appeal as sham and frivolous if it presents no arguable case. McMichael v. Barefoot, 85 N. J. Eq. 139, 95 Atl. 620. The Prerogative Court, like the orphans' court, is a court of general jurisdiction over the subjects within its cognizance. See. In re Hathorn's Will (N. J. Prerog.) 97 Atl. 263.

There is a marked distinction between pleadings which are frivolous and those which are sham. In 31 Cyc. 613, it is stated:

"While the courts sometimes use the terms frivolous' and 'sham' as meaning the same thing, and a motion to strike is often based on the ground that a plea is both frivolous and sham, there is nevertheless a clear distinction between the two in that a sham plea is good on its face, but false in fact,...