Martin v. Lehigh Valley R. Co.

• Decision Date: 10 January 1935
• Docket Number: No. 127.,127.
• Citation: 176 A. 665
• Parties: MARTIN v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

176 A. 665

MARTIN

v. LEHIGH VALLEY R. CO.

No. 127.

Court of Errors and Appeals of New Jersey.

Jan. 10, 1935.

Appeal from Circuit Court, Hudson County.

Action by Harry Martin against the Lehigh Valley Railroad Company. From an order discharging plaintiff's rule to show cause why a discontinuance filed in the action should not be stricken from the files, plaintiff appeals.

Reversed, and cause ordered reinstated, with directions.

Robert H. Doherty, of Jersey City, for appellant.

Collins & Corbin, of Jersey City (Edward A. Markley and Charles W. Broadhurst, both of Jersey City, of counsel), for respondent.

PERSKIE, Justice.

This appeal brings up for review an order discharging plaintiff's rule to show cause why a discontinuance filed in this case should not be stricken from the files and decreed for nothing holden.

On notice of the motion below, with the reservation that there was no such action pending as the one herein captioned, and that the court below had neither the jurisdiction nor authority to reinstate the same, or to grant the relief prayed for, it was stipulated and agreed between present counsel for the respective parties that the affidavits of both sides should be considered by the court with the same force and effect as though the facts therein contained were testified to on depositions of the witnesses under said rule to show cause; a like stipulation as to the effect of the affidavits to be used on the return of the rule to show cause was also made between the same counsel.

These affidavits are presented in full and disclose, substantially, this situation: Paul Koch, attorney of this state, instituted a suit at the Hudson county circuit court and erroneously styled or captioned it Harry Martin v. Lehigh Valley Railroad Company.

Notwithstanding the concluding comment of counsel for the defendant, "if the defendant had scrutinized the entire complaint and perhaps used its imagination," it would have understood that the party who was seeking to bring the suit was Margaret Jane Martin, widow of Harry Martin, and not Harry Martin, nevertheless the fact is that the complaint requires very little scrutiny or use of the imagination to determine that it was the widow who was seeking to recover damages for the death of her husband arising out of an accident in Pittston, Pa. That was obvious; the tenuous argument to the contrary lacks any weight or persuasion.

The complaint sets forth that "plaintiff is the widow of Harry Martin"; "plaintiff's Intestate was riding in a car driven by his son * * * the locomotive * * * struck the car in which intestate was riding * * * inflicting injuries upon the intestate which caused his death." "Intestate left surviving him as his next of kin plaintiff * * *." Nothing could be clearer than that an error has been made in the styling or captioning of the cause.

Attorneys for the defendant (by their representative, Mr. Broadhurst, who had charge of the cause) filed a demand for security for costs. Thereupon the attorney for the plaintiff discovered this error, but the Pennsylvania statutory limitation of one year (12 PS Pa. § 1603), applicable to the instant suit, had already run. The attorney for the plaintiff prepared and caused to be served an amended summons and complaint, and in reply to his communication to the attorneys for the defendant received the following reply:

"The amended summons and complaint was served on us by the Sheriff's office, but the point that we raise is that all action on the original suit of Harry Martin v. the Lehigh Valley Railroad Company was stayed when we demanded security for costs in that action. It being stayed you could not file and serve an amended summons and complaint. You could, of course, serve and file an original complaint."

"If you desire to discontinue the case of Harry Martin v. Lehigh Valley Railroad Company without costs, we will consent to the same and abandon our present motion. The second summons and complaint would then be considered an original suit and upon your filing security for costs would proceed as though it was an original suit." (Italics ours.)

Plaintiff's attorney answered: "Thank you for your letter with respect to the above entitled matter. I will be glad to discontinue the case of Harry Martin and consider the matter of Margaret Jane Martin as the original suit. I am getting the necessary bond for you; will have the same within the next day or so and file it with you." (Italics ours.)

Defendant's attorney replied:

"In view of your willingness as expressed in your letter of December 3rd to discontinue the suit of Harry Martin v. the company, we are preparing and send you herewith original and two copies of such discontinuance. If you will sign the original and copy, returning them to us, we will file the same. The other copy you may retain for your file."

"Assuming that the discontinuance is returned and signed by you, then the motion will be considered abandoned. If not, it will be on for December 9th."

Plaintiff's attorney responded:

"I enclose herewith a discontinuance in the above entitled matter. Thank you for your Courtesy herein."

"The bond in Mrs. Martin's case will be in your hands within the next few days."

The discontinuance reads as follows: "It is hereby ordered that the above action be and the same is hereby discontinued without costs to either party as against the other." It was not signed by the judge.

Respondent's attorneys, however, moved to strike out the complaint on the ground that it failed to allege the Pennsylvania death act (12 PS Pa. § 1601 et seq.) and that the plaintiff failed to comply with the conditions precedent to the bringing of such action under the said statute. By the latter contention, defendant was, obviously, setting up the bar of the statute of limitation. After some delay, present counsel was substituted for plaintiff's first attorney, and he promptly moved to set aside the discontinuance and to amend the pleadings so as to set forth the Pennsylvania statute and the correct name of the plaintiff. The trial judge refused this application, and plaintiff appeals.

We are met, in limine, with the primary question whether an appeal lies from the order discharging the rule to show cause. We think, under the clear and convincing proofs herein, that it does.

The law applicable is well settled. Matters resting in the discretion of the courts are not, in general, subject to review in appellate courts, unless an abuse of discretion is shown. State (Newell, Prosecutor, et al.) v. Bassett et al., 33 N. J. Law, 26; Gaffney v. Illingsworth, 90 N. J. Law, 490, 493, 101 A. 243; Robinson v. Payne, 99 N. J. Law, 135, 142, 122 A. 882; Gormley v. Gasiorowski, 110 N. J. Law, 287, 289, 164 A. 440; Diamond Rubber Co., Inc., v. Feldstein, 112 N. J. Law, 514, 518, 171 A. 815. Obviously unless the widow can be relieved of the order the force and effect thereof would be that "the defendant go thereof without day." Our study of the proofs leads us to the firm conclusion that an abuse of discretion, in the discharge of the rule to show cause, is clearly shown.

Having concluded that an appeal does lie from the order, we approach the next question: Did the court err in refusing to strike the discontinuance? We think that it did.

Whether it be counsel's aversion to "a suit brought by a resident of Pennsylvania where the accident happened in Pennsylvania, in the courts of New Jersey," notwithstanding that it has been repeatedly held that such a resident has the right to prosecute such a suit (Kopenhafer v. Pennsylvania R. Co., 106 N. J. Law, 530, 148 A. 629), or whatever their motivating reason or reasons might have been, it is apparent that the plaintiff's attorney was clearly misled into the belief, by the correspondence of defense counsel, that upon the filing of a discontinuance an amendment such as would cure the defects would be permitted by them. If this were not so, it is difficult, if not impossible, to understand the point to the termination of the action. As already stated, if the court is powerless to grant the relief sought, the effect is to destroy the widow's alleged cause of action. She never consented to it and her attorney never intended it to have that effect. Every instinct for the attainment of substantial justice urges and impels the granting of the relief sought. Substantial rights are involved. The goal is not unattainable.

This court has control of the cause of action, the pleadings, and the stipulation. If a judgment may be opened and vacated, pleadings amended and withdrawn, warrant to satisfy a judgment be set aside—all, of course, on good and legal cause shown—it would appear to follow that a discontinuance filed, as in the instant case, may also, on good and legal cause shown, be withdrawn. There is nothing inviolable about an order of discontinuance. Reduced to its simplest terms, it is nothing more or less than an agreement between respective counsel without the express sanction of the court. We are not to be understood as disapproving the general practice of the bar in entering a discontinuance by consent of counsel. That practice has much that can be said in favor of it. We approve of it. Although such a discontinuance is entitled to, and receives, recognition by our courts, it is not, however, any more than any other pleading in a cause, beyond attack. And if upon proper application it is made to appear that mutuality is lacking or that substantial rights of a client, as herein, have been sacrificed, this court will take hold and treat it accordingly. Such has been, and is, the declared policy of our courts.

In the case of Hygrade Cut Fabric Co. v. U. S. Stores Corp., 105 N. J. Law, 324, 144 A. 605 (E. & A.), plaintiff sued for $1,400; defendant answered that only $614 was due, alleging that it had tendered the same, and it paid it into court; thereupon an order was made in the circuit court authorizing the clerk to turn over to plai...