Nuese's Estate, In re

• Court: New Jersey Supreme Court
• Writing for the Court: BURLING
• Citation: Nuese's Estate, In re, 104 A.2d 281, 15 N.J. 149 (N.J. 1954)
• Decision Date: 05 April 1954
• Docket Number: No. A--115,A--115
• Parties: In re NUESE'S ESTATE.

Page 149

15 N.J. 149

104 A.2d 281

In re NUESE'S ESTATE.

No. A--115.

Supreme Court of New Jersey.

Argued March 15, 1954.

Decided April 5, 1954.

Thomas V. Jardine, Newark, argued the cause for the appellant Robert E. Nuese (Carey, Schenk & Jardine, Newark, attorneys).

Verling C. Enteman, Newark, argued the cause for the trustee-respondent Irving Trust Co. (McCarter, English & Studer, Newark, attorneys).

The opinion of the court was delivered by

BURLING, J.

This appeal emantes from a probate matter, settlement of a trustee's account, but involves solely an adjective question relating to appellate practice and procedure. The Irving Trust Company, trustee under the will of Robert E. Nuese, deceased (hereinafter called the trustee), filed its first and final account (3f that portion of the decedent's estate known as the Frances B. Nuese Trust) in the Essex County Court, Probate Division. Exceptions were filed by Robert E. Nuese (hereinafter called the exceptant), the sole living beneficiary of the trust estate. Trial was had and after protracted post-trial proceedings, the County Court judge having filed his opinion on April 2, 1953, In re Nuese's Estate, 25 N.J.Super. 406, 96 A.2d 298 (Exsex Cty.Ct.1953), judgment was entered on June 17, 1953. On September 1, 1953 the exceptant's counsel filed a notice of appeal. The Superior Court, Appeallate Division, by order dated September 22, 1953 dismissed the appeal on motion of the trustee, stating in a letter memorandum 'Had we the power to do so, we would have extended the time for appeal.' The exceptant petitioned this court for certification, which was allowed, 14 N.J. 14, 101 A.2d 117 (1953).

The sole question involved on this appeal is whether the Superior Court, Appellate Division, erred in dismissing the exceptant's appeal. We are of the opinion that the notice of appeal to the Superior Court, Appeallate Division, was not filed within the period required by the pertinent rules and that no special equities exist in exceptant's behalf. Therefore the dismissal of the appeal was proper.

The Rules.

To take an appeal in a case such as this an appellant was required to complete both the service and the filing (see former Rule 1:2--4(a) as amended January 1, 1952, now R.R. 1:2--8(a)) of his notice of appeal from the judgment of the County Court within 45 days after the entry thereof. Former Rule 1:2--5(a), as amended January 1, 1952, (now R.R. 1:3--1(b)) applicable to appeals to the Superior Court, Appellate Division, under former Rules 4:2--4 and 4:2--5 (now R.R. 2:2--5 and R.R. 2:3). Former Rule 1:2--5 originally provided that the running of the time for taking an appeal was initiated by the 'entry of the judgment, order or determination appealed from.' (Emphasis supplied.) Although former Rule 1:2--5, supra, was amended December 7, 1950 and January 1, 1952, in other respects this provision remained unchanged, and it has been continued verbatim in R.R. 1:3--1. The importance of this provision is emphasized by the exception contained in former Rule 1:2--5, supra, as originally adopted, concerning agency decisions. Subparagraph (f) of the original former Rule 1:2--5, supra, provided that the period as to agency decisions should be 30 days '* * * except here in time shall run from the date of the Service of the decision of the agency.' (Emphasis supplied.) Further emphasis is indicated by former Rule 1:2--6 relative to tolling of time for appeal. The running of the time for appeal was not tolled by failure to serve notice of entry of judgment, either by the original rule or the amendments thereto of June 7, 1951, January 1, 1952 and January 1, 1953, nor is there such a provision in R.R. 1:3--3 (the present counterpart of former Rule 1:2--6, as amended, supra). In addition, former Rule 3:58, now R.R. 4:59, analogous to Federal Rules of Civil Procedure, Rule 58, 28 U.S.C.A., (differing only in particulars not here pertinent), provides 'The notation of a judgment in the civil docket * * * constitutes the Entry of the judgment' (emphasis supplied) and the clerk of the court is required to enter the judgment 'forthwith' on the signing of the judgment. Under Federal Rule 58, supra, the clerk's notation in the docket initiates the running of the time for appeal. E. g., United States v. Wissahickon Tool Works, Inc., 200 F.2d 936 (C.C.A.2, 1952). Former Rule 3:58, supra, was applicable to the County Courts under former Rule 5:2--1, both as originally adopted and as amended January 1, 1952; and R.R. 4:59, supra, is now applicable to the County Courts under R.R. 5:2--1. In the light of these provisions, this court, in In re Pfizer, 6 N.J. 233, 239, 78 A.2d 80, 83, (1951), held as follows:

'It may well be that to require a dismissal of this appeal will work a hardship upon the respondents but such a situation can afford no relief for it is a well established principle in this state that when the time for taking an appeal has run the parties to a judgment have a vested right therein which cannot subsequently be taken from them. Plahn v. Givernaud, 85 N.J. Eq. 143, 96 A. 40 (e. & A.1915); Shade v. Colgate, 3 N.J. 91, 69 A.2d 19 (1949).'

The necessity for compliance with the rules relating to the time for appeal also has been stressed in Korfin v. Continental Casualty Co., 5 N.J. 154, 157, 74 A.2d 312 (1950).

The exceptant, however, contends that the Pfizer case, supra, does not settle the construction of former Rule 3:5--1, as amended November 10, 1949 and January 1, 1952 (now R.R. 4:5--1), and former Rule 3:102--7, as amended September 15, 1948 (now R.R. 4:118--8), and that by virtue of these rules the running of the time for appeal is in effect stayed until service of Notice of entry of judgment.

Former Rule 3:5--1 as amended November 10, 1949 and January 1, 1952, supra, and now R.R. 4:5--1, supra, provide:

'Unless otherwise directed by the court, every order and judgment, every pleading subsequent to the original complaint, every written motion, other than one which may be heard ex parte, and every written notice, appearance, demand, brief or memorandum of law, offer of judgment, bill of costs, and similar paper, other than a judgment signed by the clerk, shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional clauses [*] for relief against them shall be served upon them in the manner provided for service of summons.' (* Former Rule 3:5--1 as amended used the word 'claims'.)

Former Rule 3:102--7, as amended September 15, 1948 (cf. R.R. 4:118--8, supra) provided:

'Immediately upon the entry of an order or judgment, the clerk in the manner provided by Rule 3:5[*] shall serve a notice of the entry by mail, except that it need not be sent by registered mail and a return receipt need not be requested, upon every party affected thereby who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice For all purposes for which notice of the entry of an order or judgment is required by these rules; but any party in addition May serve a notice of such entry in the manner provided in Rule 3:5[*] for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed.' (Emphasis supplied.)

* Note: R.R. 4:118--8 deletes from the first sentence of this rule the phrase 'in the manner provided by Rule 3:5.' In the second sentence the reference remains but is changed to 4:5.

These rules (former Rules 3:5--1 and 3:102--7, as amended, supra, now R.R. 4:5--1 and R.R. 4:118--8) are In pari materia, not only with each other, but with the rules, hereinbefore discussed, concerning entry of judgment and time for appeal. The clear import of these rules is that for the purposes of appeal the service of the Notice of entry of judgment is not a Sine qua non. Former Rule 3:102--7, as amended (now R.R. 4:118--8), supra, expressly so declares in unmistakable terms.

The history of former Rule 3:102--7, as amended (now R.R. 4:118--8), supra, supports the foregoing conclusion. The Tenative Draft of the Rules, circulated early in 1948, expressed the substance of Rule 3:102--7, as amended, supra, in the following language:

'Immediately upon the entry of an order or judgment the clerk shall mail a notice of the entry to the attorney for every party affected thereby who is not in default for failure to appear, or if such a party appears for himself, then to the party. The notice shall be mailed to the address of the attorney, or party, appearing on the endorsement of the last paper filed in the action on behalf of the parties; and the clerk shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order or judgment is required by these rules; but any party in addition may serve a notice of such entry in the manner provided in Rule 3:5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rules 1:2--3 and 4:2--4.'

The Tentative Draft discloses the following comment:

'1. This is Federal Civil Rule 77 (d) as amended. The new practice is better than that provided for under R.S. 2:29--6 under which parties had to take notice at their peril of the pronouncement and signing of decrees.

'2. Service of orders and judgments is required by Rule 3:5--1.'

The Tentative Draft comments on former Rule 3:5--1 (now R.R. 4:5--1) contain comparable expressions concerning an intent to moderate (but not to abolish In toto) to former procedure of the statute, R.S. 2:29--6, supra, which provided 'Parties to suits in Chancery shall take notice, at their...