Romano v. Maglio

• Decision Date: 21 September 1956
• Docket Number: No. A--467,A--467
• Citation: 41 N.J.Super. 561,125 A.2d 523
• Parties: Leonora ROMANO, Pasquale Romano and Rocco Caruso, Executors and Trustees of the Estate of Antonio Maglio, Deceased, Plaintiffs, Leonora Romano, Plaintiff-Appellant, v. Louise MAGLIO et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 561

41 N.J.Super. 561

125 A.2d 523

Leonora ROMANO, Pasquale Romano and Rocco Caruso, Executors and Trustees of the Estate of Antonio Maglio Deceased, Plaintiffs Leonora Romano, Plaintiff-Appellant, v. Louise MAGLIO et al., Defendants-Respondents.

No. A--467.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 5, 1956.

Decided Sept. 21, 1956.

Robert V. Carton, Asbury Park, argued the cause for Leonora Romano (Durand, Ivins & Carton, Asbury Park, attorneys).

Ira C. Moore, Jr., Newark (Whiting, Moore & Phillips, Newark, attorneys; C. Alan Phillips, Newark, of counsel), James L. R. Lafferty, Newark (Steelman, Lafferty & Rowe, Newark, attorneys), and Samuel A. Bloom, Newark, argued the cause for various defendants-respondents.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Mrs. Pasquale Romano, one of the daughters of Antonio Maglio and a beneficiary under his will, moved before the Superior Court, Chancery Division, to set aside an order entered by it approving certain sales of his lands. The motion was denied. She now appeals from the order denying her motion, claiming that the order approving the sales was void because of a lack of jurisdiction over her and a denial of procedural due process.

In 1952 she, Pasquale Romano and Rocco Caruso, who were appointed by the will as executors and trustees, commenced this action as an action of ejectment. Four other daughters of the testator counterclaimed demanding, Inter alia, that the court 'take jurisdiction of the administration' of his estate, that plaintiffs be removed as trustees and that the will be construed, particularly Paragraph Eleventh:

'I direct my Trustees to give first preference in the sale of any part or all of my real estate to my children.'

It may be noted, in passing, that this provision of the will had been previously construed to a certain extent by the Chancery Division in an unreported case, Forbringer v. Romano, affirmed on other grounds, 10 N.J.Super. 175, 76 A.2d 825 (App.Div.1950).

On February 27, 1953, pursuant to a stipulation of settlement, a final judgment was entered by consent on the complaint in ejectment and the counterclaim. The judgment directed the trustees to sell 'all of the real estate' left by the testator within 90 days, as more fully specified in the judgment, and it further provided in paragraph 6:

'Any of the parties hereto shall have leave to apply to the court for further directions or relief at the foot of this judgment.'

Thereafter, during the next 17 months the counterclaimants, obviously proceeding under paragraph 6 of the judgment, filed four petitions in the cause: two of them leading to orders attempting to effect a sale of the lands; the third leading to orders removing the above-mentioned executors and trustees for malfeasance and adjudging them in contempt of court; and the fourth to an order appointing the Howard Savings Institution, as substituted administrator with the will annexed and substituted trustee, and also joining Mrs. Romano and others, individually, as parties defendant to the counterclaim (she had theretofore been a party merely in her capacity as one of the executors and trustees).

Thereafter the Howard Savings Institution, obviously also applying for further directions at the foot of the final judgment, filed a petition dealing with contracts entered into by petitioner, subject to the approval of the court, for the sale of all the testator's realty. In the petition was set forth paragraph Eleventh of the will, which, as above stated, gave the children a first preference in the sale of any part or all of the testator's realty. The petition demands judgment approving these sales and authorizing the petitioner to make conveyances of the lands to the respective purchasers free from any preference. An order to show cause issued on the petition, and on February 11, 1955 an order was entered in accordance with the demands of the petition

Eleven and a half months later Mrs. Romano moved to set aside this order, but the motion was denied by Judge Sullivan by order of March 23, 1956. She then made a motion before this court under R.R. 2:2--3 for leave to appeal from the order of March 23, 1956. At that posture of the case she assumed the order was interlocutory.

We have not yet had occasion to discuss our practice under that rule, and it may be helpful to make some general observations on the matter. We grant leave under the rule only 'in the exceptional cases where, on a balance of interests, justice suggests the need for a review' of an interlocutory order. Appeal of Pennsylvania Railroad Co., 20 N.J. 398, 409, 120 A.2d 94 (1956). Indeed, the power given to this court by the rule is very sparingly exercised by us. In the usual case, the application to us is made prior to a final judgment, and we then have regard for the strong public interest in uninterrupted proceedings at the trial level with a single and complete review. Appeal of Pennsylvania Railroad Co., supra; Trecartin v. Mahony-Troast Construction Co., 21 N.J. 1, 6, 120 A.2d 733 (1956); City of Newark v. Division of Tax Appeals, Dept. of Treasury, 7 N.J. 8, 12, 80 A.2d 202 (1951).

We will not grant leave to appeal in order to correct minor injustices, such as those commonly attendant on orders erroneously granting or denying interrogatories or discovery. Redress for such grievances can be had only through an appeal from the final judgment, provided the judgment results from the interlocutory orders complained of. Clock v. Public Service Co-ordinated Transport Co., 8 N.J.Super. 20, 22, 73 A.2d 203 (App.Div.1950). However, we may grant leave to appeal where some grave damage or injustice may be caused by the order below, such as may occur when the trial court grants, continues, modifies, refuses or dissolves an injunction, appoints a receiver or refuses an order to wind up a pending receivership or to take the appropriate steps to accomplish the purposes thereof, such as directing a sale or other disposal of property held thereunder. We may also be induced to grant leave where the appeal, if sustained, will terminate the litigation and thus very substantially conserve the time and expense of the litigants and the courts, as in the case where the order attacked determines that the court or agency below has jurisdiction of the subject matter or person. There is a variety of other situations in which we may entertain an interlocutory appeal. Thus, see Zaleski v. Local 401, United Elec., etc., Workers of America, 6 N.J. 109, 114, 77 A.2d 798 (1951).

However, we grant leave to appeal only where there is some showing of merit and justice calls for our interference in the cause. In the present case the circumstances were very fully laid out on the motion, and it became evident that the appeal lacked merit.

Accordingly, we denied leave to appeal from the order of March 23, 1956. Mrs. Romano, then taking the position that the order was in fact a final judgment, appealed to us therefrom as of right. If it was final, the appeal was within time. Defendants, however, contend it was not final, and they moved to strike the appeal on that ground. We might say that no one claims that Mrs. Romano is precluded from taking this appeal because of having assumed an inconsistent position in the course of the litigation, and we therefore do not consider the point.

If the order of February 11, 1955 approving the sales was final, then the order of March 23, 1956, refusing to open it, is also final. Palm Beach Mercantile Co. v Ivers, 2 N.J.Super. 5, 9, 64 A.2d 367 (App.Div.1949); Defiance Fruit Co. v. Fox, 76 N.J.L. 482, 487, 70 A. 460 (E. & A.1908) (in which an order refusing to open a mechanic's lien judgment is referred to as a final decision reviewable by a writ of error). But if the 1955 order is interlocutory, the 1956 order is also interlocutory. Cf. Mueller v. Seaboard Commercial Corp., 5 N.J. 28, 31, 73 A.2d 905 (1950).

An order approving the sale of lands, such as the 1955 order, would have been held to be interlocutory under former practice. In re Mortgage Guaranty Corporations', etc., Act, 131 N.J.Eq. 120, 24 A.2d 196 (E. & A.1942), dealing with an order approving a trustee's sale; cf. Fidelity Union Trust Co. v. North Jersey Poultry Co., 123 N.J.Eq. 259, 197 A. 65 (E. & A.1938), the leading case on the general subject, dealing with an order confirming a sale in a foreclosure suit. On the other hand, an order setting aside a foreclosure sale has been held to be 'final in it nature.' Chamberlain v. Larned, 32 N.J.Eq. 295, 297 (E. & A.1880), citing Blossom v. Milwaukee & C.R.R. Co., 1 Wall. 655, 658, 68 U.S. 655, 658, 17 L.Ed. 673, 674 (1863). In other jurisdictions an order confirming a sale is held to be a final judgment. Butterfield v. Usher, 91 U.S. 246, 23 L.Ed. 318, 319 (1876); Sage v. Central R. Co. of Iowa, 96 U.S. 712, 714, 24 L.Ed. 641, 643 (1878); see Blossom v. Milwaukee & C.R.R. Co., supra (these last three cases must be taken to have overruled any intimations to the contrary in Whiting v. Bank of United States, 13 Pet. 6, 38 U.S. 6, 10 L.Ed. 33 (1839), a case strongly relied on in North Jersey Poultry Co., supra); Madison & Kedzie State Bank v. Cicero-Chicago C. Co., 351 Ill. 180, 184 N.E. 218, 222 (Sup.Ct.1932); Seder v. Kozlowski, 311 Mass. 30, 40 N.E.2d 14, 19 (Sup.Jud.Ct.1942); 4 C.J.S., Appeal and Error, § 135, 59 C.J.S., Mortgages, § 746.

There was this to be said for the rule of North Jersey Poultry Co. under the former practice:

'* * * if a party aggrieved by such order (confirming sale) was allowed to appeal therefrom within a year from the date of confirmation the purchaser * * * would be subjected to harassment for an unconscionable length of time never contemplated by the legislature.' Fidelity Union Trust Co. v. North Jersey Poultry Co., 123 N.J.Eq. 259, 263, 197 A. 65, 67 (E. & A.1938).

But this is not a consideration today; the time...