Palm Beach Mercantile Co. v. Ivers.

• Decision Date: 03 March 1949
• Docket Number: No. A-90.,A-90.
• Citation: 64 A.2d 367
• Parties: PALM BEACH MERCANTILE CO. v. IVERS.
• Court: New Jersey Superior Court

64 A.2d 367

PALM BEACH MERCANTILE CO.

v.IVERS.

No. A-90.

Superior Court of New JerseyAppellate Division, Part A.

March 3, 1949.

Appeal from District Court, Essex County.

Action by Palm Beach Mercantile Co., against Kurt Ivers, individually, etc. From a judgment for the plaintiff and from an order discharging defendant's rule to show cause why the judgment should not be vacated, the defendant appeals.

Appeal dismissed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Jay E. Bailey and Bailey and Schenck, all of Newark, for plaintiff-respondent.

Theodore Rabinowitz, of Jersey City, and Bernard S. Glick, of Hoboken, for defendant-appellant.

BIGELOW, Judge.

Judgment in this cause was entered in the District Court of the Essex County Judicial District June 30, 1948, in favor of the plaintiff for $498 damages with costs. The judgment was based on proofs taken ex parte upon the failure of defendant to appear on the day which had been set for trial. On November 3, 1948, defendant obtained a rule to show cause why the judgment should not be vacated. The docket contains the following entry under date of November 10: ‘This rule was tried at Part I before Ferdinand D. Masucci, Judge. Rule denied.’ On November 16, defendant served and filed notice of appeal from the judgment which had been entered June 30 and from the dismissal of the order to show cause. The following day the order discharging the rule to show cause was signed by the judge and filed in the clerk's office. Respondent moved to dismiss the appeal on several grounds and among them that, considered as an appeal from the judgment of June 30, it was too late, and as an appeal from the discharge of the rule to show cause, it was too early. It seemed to us that the questions raised on this motion should await the argument of the appeal and therefore we denied the motion without prejudice.

We agree with respondent that the appeal cannot be maintained as an appeal from the judgment of June 30, for the time to appeal expired long before the notice of appeal was served. R.S. 2:32-206, as amended P.L.1945, ch. 79; P.L.1948, ch. 385, sec. 12, N.J.S.A. 2:32-10.12; Rules 1:2-5 and 4:2-5. Whether the appeal from the discharge of the rule to show cause can be sustained depends to some extent upon the effect of the oral discharge of the rule which was noted by the clerk in his docket. Generally the practice and procedure in the district courts conforms as nearly as may be to the practice and procedure in the law divisions of the county courts and of the Superior Court. P.L.1948, ch. 385, sec. 1, N.J.S.A. 2:32-10.1; Rule 5:2-1. It has been the practice in New Jersey that judicial action takes the form of a writing, with some few exceptions, such as the rulings in the course of a trial. The announcement of Judge Masucci that he denied the motion to vacate the judgment, even though noted in the Clerk's Docket, probably did not constitute an order of the court until put in writing and signed. Technically, of course, an appeal does not lie from an order which has not yet been made. But the circumstance that the judge did not sign the order until the day after the appeal was taken, does not affect the merits and should not be permitted to deprive the aggrieved party of his appeal.

Respondent, in support of his motion to dismiss the appeal, also argues that the discharge of the rule to show cause was not a ‘final judgment’ or an interlocutory order from which an appeal is permitted by Rule 4:2-1 and 2. We are satisfied that the term final judgment, as used in the rule, is at least as broad in scope as the same term formerly used in connection with writs of error. Final judgments reviewable on writs of error included ‘decisions rendered in the exercise of the equitable powers of a court of law or in the course of its statutory or summary jurisdiction, provided they result idn a final disposition of the matter and have not rested in the discretion of the court.’ Defiance Fruit Co. v. Fox, Err. & App.1908, 76 N.J.L. 482, 70 A. 460. While an order opening a judgment has not the quality of finality, an order refusing to oepn the...