In re Braunstein's Will

• Decision Date: 05 March 1930
• Citation: 149 A. 349
• Parties: In re BRAUNSTEIN'S WILL.
• Court: New Jersey Supreme Court

149 A. 349

In re BRAUNSTEIN'S WILL.

Prerogative Court of New Jersey.

March 5, 1930.

Syllabus by the Court.

Proceeding to probate the alleged will of Samuel M. Braunstein, deceased. On appeal from an order setting aside a previous order designating a judge of the court of common pleas of another county to sit at hearing and disposition of will contest.

Appeal dismissed.

Cole & Cole, of Atlantic City, for appellants Harry Braunstein and Guarantee Trust Co.

Joseph B. Perskie and Harry Cassman, both of Atlantic City, for respondent Bertha Hastings Braunstein.

Emerson L. Richards and Louis E. Stern, both of Atlantic City, for respondent Rose Richman.

INGERSOLL, Vice Chancellor.

On the 2d day of April, 1929, there was filed in the office of the clerk of Atlantic county an order in the following-words:

"I hereby designate Honorable Henry H. Eldredge, Judge of the Court of Common Pleas of the County of Cape May, New Jersey, to sit for me and hold and try Orphans' Court in May's Landing on April 24th, 1929. and on subsequent days and dates in the month of April and May necessary to hear all the evidence and dispose of the will contest in the Estate of Samuel M. Braunstein, deceased. Win. H. Smathers Judge of the Court of Common Pleas of Atlantic County.

"Dated March 30, 1929."

This order was presented to one of the clerks of the Atlantic county clerk's office in Atlantic City, a branch office of the clerk, established in that city for the purpose, inter alia, of receiving papers for transmission to the clerk's office at the county seat.

On March 30, 1929, Judge Smathers was the only judge of the court of common pleas of Atlantic county. Joseph A. Corio had previously thereto been appointed, and had taken his oath of office. His commission took effect on the 1st day of April, 1929, article 6, § 6, clause 1, Constitution of New Jersey, and he entered upon the performance of the duties of his office at that time.

The matter of the probate of the alleged will of Samuel M. Braunstein, deceased, was at issue in the orphans' court of Atlantic county on the said 30th day of March, 1929. A petition was filed seeking to set aside said writing made by Judge Smathers.

A rule to show cause was granted by Judge Corio, who, after hearing the parties on the return day, April 22, 1929, entered an order as follows:

"Atlantic County Orphans' Court.

"In the Matter of the Probate of the Alleged Will of Samuel M. Braunstein, Deceased.

"On Caveat against Probate of Will.

"On Rule to Show Cause.

"Order.

"This matter coming on to be heard on the return of the rule to show cause, duly served herein, in the presence of Cole & Cole, Esqs., Proctors for the proponents, and Harry Cassman, Joseph B. Perskie, Emerson L. Richards and Louis E. Stern, Proctors for the caveators and the court having heard and considered the arguments and reasons advanced, and being of the opinion that the order of designation heretofore made on the 30th day of March, 1929, designating Honorable Henry H. Eldredge, Judge of the Common Pleas Court of Cape May County, to hear all the evidence and dispose of the above matter, should be vacated;

"It is, on this 22nd day of April, 1929, ordered that the order of designation to Honorable Henry H. Eldredge in the above stated cause, dated March 30th, 1929 and filed April 2, 1929, be and the same is hereby vacated.

"Joseph A. Corio, Judge."

An appeal was taken to the Prerogative Court and brought on to a hearing before me on the 30th day of January, 1930. At that time it was suggested by me that, as Judge Smathers had limited his designation and authority to Judge Eldredge to sit upon days and dates in the months of April and May (1929), and that these months have long since passed, the appeal raised merely a moot question, and was therefore entirely academic. Counsel for the appellant felt that the question should be determined.

Taking the view, as I do, and as I will hereafter enlarge upon, that this is a moot question, and therefore academic, it is unnecessary to determine, first, whether or not the order of Judge Smathers was within the provisions of section 97, vol. 2, Comp. Stat. 1910, p. 1726, and, second, whether the filing thereof by him complied with section 98 on the same page of the Compiled Statutes, and, if it did, whether the present appeal is well founded. Upon these points, no opinion is expressed.

The Supreme Court, in McCann, Administratrix, etc., v. N. Y., Susquehanna & Western Railroad Co., 101 N. J. Law, 56, 127 A. 796, 798, said: "We think it quite clear that the court is powerless to take cognizance of the appeal, because it is now academic and involves no matter in a pending cause," and further, "We conclude that the order appealed from not having been entered in the time required by the rules of the court was null and void." The analogy in the present case is evident. The designation of Judge Eldredge was specific and limited, and by its own terms has become ineffective, and no order made by this court upon this appeal could revive the order in question. To make an order would therefore be without effect, and the court will not do a vain thing. Zudiak v. Szuryk, 93 N. J. Eq. 559, 118 A. 331.

Numberless cases in other jurisdictions can be cited to the effect that it is the duty of an appellate court to dismiss an appeal and not to proceed to formal judgment, if, pending the appeal, an event occurs, without any fault of the defendant, which renders impossible for the court, if it should decide the case in favor of the plaintiff, to grant any effectual relief. Vidal v. South American Securities Co. (C. C. A. N. Y., 1922) 276 F. 855. A court will not inquire into the validity of a divorce obtained by a man since deceased for the mere purpose of satisfying a sentiment as to who is his widow. Lawrence v. Nelson, 113 Iowa, 277, 85 N. W. 84, 57 L. R. A. 583.

Where the person for whom a guardian is said to be appointed dies pending appeal from judgment refusing to open, the ordinary course would be to dismiss. In re King's Estate, 43 Cal. App. 307, 184 P. 964.

Where a physician who had been enjoined from practicing medicine and had appealed dies after the case was argued and submitted, the appeal will be dismissed, and will not be retained for the purpose of determining questions of cost. Branscome v. Cunduff, 123. Va. 352, 96 S. E. 770.

A suit should be dismissed in the interest of the public and the court whenever the controversy has become moot, regardless of how that issue is presented or suggested. Puget Sound, etc., v. Seattle (D. C.) 271 F. 958.

In Morehouse v. Little, 40 Idaho, 114, 232 P. 1099, it was held that, during pendency of the action, the subject thereof being destroyed, the action abated, and judgment of dismissal was properly entered. The alleged error signed in the court's bill of exceptions in overruling a motion at the May term to dismiss garnishment proceedings became moot where the proceedings were dismissed at the following December term. Kittles v. Thorpe, 29 Ga. App. 146, 114 S. E. 228.

Where, pending a motion for rehearing on appeal from an injunction to restrain the party committee from entertaining a contest of the primary election, the general election was held, the case has become moot, and will be dismissed. Walker v. Hopping (Tex. Civ. App.) 226 S. W. 146.

The principle is annotated in vol. 6, British Ruling Cases, at page 340....