Margolies v. Goldberg

• Decision Date: 19 January 1925
• Docket Number: Nos. 54-58.,s. 54-58.
• Citation: 127 A. 271
• Parties: MARGOLIES v. GOLDBERG, and four other cases.
• Court: New Jersey Supreme Court

127 A. 271

MARGOLIES

v. GOLDBERG, and four other cases.

Nos. 54-58.

Court of Errors and Appeals of New Jersey.

Jan. 19, 1925.

(Syllabus by the Court.)

Appeal from Supreme Court.

Actions by Max Margolies, by Louis Miller, by Isaac Mansdorf, by Capel Froom, and by Samuel Lopatin against Harry Goldberg. From judgments for plaintiffs, defendant appeals. Affirmed.

Thomas Brown, of Perth Amboy, for appellant.

Wight, Wight & Golenbock, of Perth Amboy, and Merritt Lane, of Newark, for respondents.

WALKER, Ch. These were cases in the Supreme Court to recover damages by the five plaintiffs alleging false arrest upon the complaint of defendant, Goldberg. They were tried together at circuit before Lloyd, J., and a jury by consent, and resulted in a verdict for each plaintiff. The defendant obtained rules to show cause, each of which contained this provision:

"It is further ordered that errors in law appearing on the face of the record be and they are hereby expressly reserved as grounds of appeal in the said cause."

There were six reasons assigned for a new trial, one of which was, "That a removal of two jurors resulted in a mistrial."

The rules to show cause were discharged, and the defendant, Goldberg, appeals to this court from the judgments entered on the verdicts. He assigns five grounds of appeal: (1) Because the circuit judge erroneously withdrew two of the jurors and proceeded with 10 instead of 12; (2) because the trial judge deprived defendant of his right of trial by jury as guaranteed by the Constitution; (3) because the trial judge deprived him of the right of trial by jury as guaranteed by the constitution of New Jersey, and that of the United States; (4) because the trial judge erroneously withdrew 2 jurors from the panel, which resulted in a mistrial; (5) because the trial judge withdrew 2 of the jurors in the following manner, stating the manner (as hereafter set out).

The only points argued here on behalf of the appellant are: (1) That the trial court erred in withdrawing two of the jurors; and (2) that he deprived the defendant of a trial by jury as guaranteed in article 1, par. 7, of the Constitution of New Jersey. And these together are but one.

It will be observed that the reservation is not of exceptions going to matters occurring on the trial, but is only of errors in law appearing on the face of the record. And in Goekel v. Erie R. R. Co., 126 A. 446, decided October 20, 1924, we held that error may be assigned on the record after rule to show cause allowed and disposed of, provided the particular error has not been made a ground for setting aside the verdict on rule to show cause. That is exactly what happened in this case, namely, the third reason on the rules to show cause for setting aside the verdicts and granting a new trial was, "that the removal of two jurors resulted in a mistrial." This question was, therefore, presented to the trial court, and under the Goekel Case is not available on appeal to this court. But this error complained of does not appear upon the face of the record. It concerns a matter which occurred upon the trial, and would afford a ground for exception, but no exception was taken.

It appears that this particular objection about the two jurors being withdrawn was not in terms decided by the Supreme Court on the rule to show cause, as its per curiam states that the questions that were argued were the weight of evidence and the excessiveness of damages, but, as we said in the Goekel Case (at page 446), it is to be presumed that each and every reason for new trial was argued, but whether so or not, all the reasons in support of the rule, as an effect of the order discharging it are res judicata.

Parties and those in privity with them are precluded, not only as to every matter offered to sustain or defeat a demand, but as to any other admissible matter which might have been offered for that purpose. Paterson v. Baker, 51 N. J. Eq. 49, 26 A. 324. Matters available as defenses in a suit or on rule to show cause why a new trial should not be granted are res judicata, McMichael v. Heray, 90 N. J. Law, 142, 100 A. 205. See, also, In re Walsh's Estate, 80 N. J. Eq. 565, 569, 570, 74 A. 563.

For the defendant appellant it is contended that the proceedings on the trial when the two jurors were withdrawn are part of the record, and the case of Leiferant v. Progressive Agency, Inc., 120 A. 26, is cited. Therein this court said that no ruling relating to the reception or rejection of evidence would be reviewed unless the record disclosed that an objection to such ruling was duly made or such ruling otherwise challenged at the time of the ruling; and also the case of Boesch v. Kick, 97 N. J. Law, 92, 116 A. 796, is cited, wherein the court remarked that the record in that case was voluminous, containing over 700 pages.

Of course in its broad and general signification the word "record" means a written memorial. It may be of legislative acts, judicial proceedings, record of conveyances and other instruments, etc., and counsel generally and the judges often refer to the state of the case before the court as a record, or as the record. But this must not be confused with the record strictly so called in judicial proceedings, which includes the pleadings and judgment and does not include the evidence, charge of the court, bills of exceptions, bills of particulars, etc. And assignment of common errors refers only to what is technically known as the record, and not to a bill of exceptions. Driscoll v. Carlin, 50 N. J. Law, 28, 11 A. 482. And this court said in the Goekel Case, supra, at page 449:

"Errors in law on the record are either common or special. Common errors are that the declaration is insufficient in law to maintain the action, and that judgment was given for plaintiff instead of defendant, or vice versa. Special errors are want of original writ or warrant of attorney (both obsolete with us) or any matter appearing on the face of the record which shows the judgment to be erroneous. 1 Arch. Pr. pp. 226, 227; 2 Tidd's Pr. *1169. Under an assignment of such errors this court will not reverse a judgment except for error manifest in the record. Loper v. Somers, 71 N. J. Law, 657, 61 A. 85."

Of what the strict record at common law consists is shown in the form of proceedings on an action of trespass in ejectment in the king's bench, and contains the declaration, plea, award of venire, postea, verdict, judgment, motion in arrest of judgment, decision of the court, and judgment thereon awarding writ of possession. 3 Bl. Com., Appendix No. 11.

With reference to the withdrawal of the two jurors the transcript of the testimony discloses the following:

"Appearances: Messrs. Wight, Wight & Golenbock, Henry K. Golenbock, Esq. (present), attorneys for the plaintiffs. Jacob S. Karkus, Esq., attorney for the defendant.

* * * * * * * *

"Second Day.

"Appearances as before stated.

"The Court: I understand that two of the jurors last night availed themselves of the courtesy of the defendant in riding home with him, and both counsel agree that, that being true, there was an impropriety which ought to relieve them from the further trial of this case. I do not need to say to you that the court's...