Neel v. Ball

• Decision Date: 19 March 1951
• Docket Number: No. A--82,A--82
• Citation: 6 N.J. 546,79 A.2d 459
• Parties: NEEL v. BALL.
• Court: New Jersey Supreme Court

Page 546

6 N.J. 546

79 A.2d 459

NEEL v. BALL.

No. A--82.

Supreme Court of New Jersey.

Argued Feb. 12, 1951.

Decided March 19, 1951.

James B. Avis, Woodbury, argued the cause for appellant (R. Edward Klaisz, Jr., Woodbury, attorney).

Furman A. DeMaris, Jr., Camden, argued the cause for respondent.

Furman A. DeMaris, Jr., Camden, for defendants Joseph Werner, Herman Regensburg and John B. Latimer.

Ephraim Tomlinson, Camden, for defendant R. Geoffrey Walker.

Grover C. Richman, Camden, for respondent and for defendants Eleanor Ball, Charles O. Teter, Jane M. Hoeflich, Carrie C. Batchelor, Paul C. Doering, Leon A. Dilks, E. K. Post and Harold M. Post.

John Claud Simon, Camden for defendants Dennis P. Furey, Frank LeB. Richdale and Frank LeB. Richdale, Jr., Thomas H. Hicks, Jr., and Alma Hicks.

Edward West, Camden, for defendant Charles Norcross.

Walter S. Keown, Camden, for defendant Elizabeth S. Garton.

The opinion of the court was delivered by

WACHENFELD, J.

The plaintiff, in his official capacity as Insurance Commissioner of Pennsylvania, brought actions in the Camden County District Court against fifty-six defendants to recover sums assessed against them as policyholders in the insolvent Keystone Indemnity Exchange by the Commonwealth of Pennsylvania.

The actions were commenced in September 1944. Not having been brought on for trial, they were, on September 28, 1948, placed on the 'not moved' list. At that time, R.S. 2:32--97, N.J.S.A., provided that cases marked 'not moved' could thereafter be put on the trial list by either party within a period of two years.

On January 1, 1949, Rule 7:7--6 was adopted and provided a case so marked might be brought to trial by either party, upon notice to all adverse parties, within six months and not thereafter.

Pursuant to the new rule, the Judge of the Camden District Court, on April 6, 1950, without notice to the plaintiff, directed the clerk to mark the cases discontinued.

Thereafter, on April 10, the Judge agreed to hear a motion for the rescission of the order. After argument, the court, on May 3, entered an order denying the motion and confirming the order of discontinuance.

Notices of appeal were filed in all the actions and the Appellate Division ordered them consolidated and one brief and one appendix filed in the case at bar, since precisely the same question is presented with respect to all fifty-six defendants. The appeal thus taken to the Appellate Division was certified here on our own motion.

The primary question is whether Rule 7:7--6 applied, upon its adoption, to cases already on the 'not moved' list and cut the time during which they might be brought on for trial from two years to six months, as determined by the court below.

The plaintiff contends this would give the rue a retrospective effect which cannot be inferred in the absence of a clear expression in the rule itself that it is to apply to cases on the 'not moved' list at the time of its adoption.

The defendant asserts the rule became applicable immediately to all cases, whether or not they had already been marked 'not moved,' because it governs only the manner of pursuing a remedy and does not impair or affect any substantive right. It is urged, moreover, the appeal is out of time because the order of discontinuance was originally made on April 6 and notice of appeal was not filed until May 10, after the expiration of the thirty-day period provided in Rule 1:2--5(e).

It is also suggested, apparently for the first time on this appeal, that the action has abated because the named plaintiff ceased to hold office as Insurance Commissioner of Pennsylvania in January 1947 and no motion has been made, pursuant to Rule 3:25--4, to substitute his successor.

The questions of time of appeal and the propriety of maintaining the action in the name of the designated plaintiff will be disposed of first.

Rule 3:25--4 is substantially the same as Federal Civil Rule 25(d), 28 U.S.C.A. In Fleming v. Goodwin, 165 F.2d 334, 338 (C.C.A.8th, 1948), certiorari denied, 334 U.S. 828, 68 S.Ct. 1338, 92 L.Ed. 1755, it was held an action could be maintained even though the public official who, in his official capacity, instituted it had left office more than six months before and his successor had not been substituted. In reaching this decision, the court commented:

'We think that Rule 25(d) is no broader than the reason for it, and that this action may still be maintained, notwithstanding the failure of Bowles' successors to comply with the Rule. * * *

'The right and duty to institute and maintain the action attached to the office and not to the individual who happened to be holding the office at the time the action was brought.'

Here, the action was brought by the original plaintiff in his representative capacity pursuant to a decree of a Pennsylvania court directing the Insurance Commissioner of the Commonwealth of Pennsylvania to take possession of the insolvent company and liquidate its affairs. Failure to make timely substitution, therefore, will not, in our opinion, abate the action and the court may, under Rule 3:25--5, appoint the present Insurance Commissioner in the place and stead of the plaintiff named herein.

As to the assertion that the appeals are out of time, the action of the District Court in marking the cases discontinued was taken without notice to the plaintiff. Four days later, on becoming cognizant of it, the plaintiff moved to have the order rescinded. The defendant claims that, because the court, after the hearing, denied the motion and ratified and confirmed the order of discontinuance made April 6, 1950, the time for taking an appeal ran from that date and had expired prior to May 10, when the notices of appeal were filed.

Rule 1:2--6 enumerates, as one of the motions which toll the time for taking an appeal, a motion to alter or amend a judgment under Rule 3:59. The plaintiff's motion for rescission of the order of discontinuance was in substance a motion to alter or amend a judgment of the court and so was embraced within the rule tolling the time for appeal. These appeals were therefore taken within the thirty-day period set forth in Rule 1:2--5(e).

The real question presented goes to the merits of the original controversy. It arises from the defendant's insistence that Rule 7:7--6 governed, upon its adoption, these cases which had already been marked 'not moved' as well as those which might, in the future, be so classified, relying upon Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406 (1950). There, however, the rule governing the time for taking the appeal had been promulgated and was in effect before the judgment was entered and the plaintiff's right of appeal accrued. Here, at the time the case was put on the 'not moved' list in September 1948, the plaintiff had, under R.S. 2:32--97, N.J.S.A., two years in which to move the case for...