In re Frederick Bugasch, Inc.

• Decision Date: 16 October 1934
• Docket Number: No. 243.,243.
• Citation: 175 A. 110
• Parties: In re FREDERICK BUGASCH, Inc., et al.
• Court: New Jersey Supreme Court

175 A. 110

In re FREDERICK BUGASCH, Inc., et al.

No. 243.

Supreme Court of New Jersey.

Oct. 16, 1934.

In the matter of the application to hold Frederick Bugasch, Inc., a corporation of New Jersey, and another, in contempt of court.

Application denied.

Argued May term, 1934, before TRENCHARD, HEHER, and PERSKIE, JJ.

Charles DeF. Besore, of Trenton, for the rule.

PERSKIE, Justice.

This matter comes up before us, on permission granted April 5, 1934, in open court, to reargue a rule to show cause, issued at the instance of the Hudson County Bar Association, in co-operation with the Conference of County Bar Associations, why the defendants should not be adjudged in contempt of this court, in that they practiced law without having been licensed to do so.

The illegal practice, it is charged, consisted of services rendered by the defendants to the estate of Emma S. Markert, deceased, in the probate of her will, preparing and filing inventory for inheritance tax purposes, the drawing and recording of two refunding bonds and releases.

It shall, perhaps, be helpful if we restate, as it is represented to us, the various steps in the cause already taken and the results thereof.

On the return of the original rule to show cause, the bar associations appeared by their counsel, as amicus curiae, and brought this matter to the attention of the court. Defendants also appeared. The moving parties, realizing, by reason of the nature of the cause, that they were powerless to proceed further, as amicus curiae, without authority from this court to do so, moved that this court appoint counsel to prosecute the cause in behalf of the court.

The court then requested the bar associations to file a brief directed to the jurisdiction of the court and the practice to be followed, which was subsequently prepared and filed by them, but the court did not appoint counsel to proceed. The defendants' counsel informed the court that his clients were willing to have testimony taken by depositions rather than in open court, but filed no brief.

Subsequently the court dismissed the rule (No. 284, October term, 1933). In doing so it said:

"The only proofs before us consist of ex-parte affidavits upon which the rule to show cause issued. Ex-parte affidavits may be used for the purpose of obtaining a rule to show cause, but are not competent to prove facts necessary to support a motion not of course, or to be read on the hearing on a rule to show cause, depending on facts extrinsic the record. Such facts can only be brought before the court by depositions taken on notice. Baldwin v. Flagg, 43 N. J. Law, 495; and cases there cited; Friend v. Scottish Union, etc., Insurance Co., 103 N. J. Law, 290 ."

"We have not considered either the merits or the applicability of the general procedure."

The bar associations then made application to the court for a reargument, pointing out its embarrassment, already indicated, whereupon leave to reargue was granted.

Specifically and in the words of the bar associations, "the present application is the same as that made on the return of the rule, namely, that the defendants be required to plead, and if they plead not guilty, that counsel for the amici curiae, or other counsel, be appointed to prosecute the matter in the name of this court, either by a hearing held before the court, at a day to be fixed, or by taking of depositions if the defendants consent thereto."

The bar associations seek to impress upon the court that this cause was instituted as part of a nation-wide movement, sponsored by the American Bar Association, against...