Shade v. Colgate, M--3

• Decision Date: 07 November 1949
• Docket Number: No. M--3,M--3
• Citation: 69 A.2d 19,3 N.J. 91
• Parties: SHADE v. COLGATE et al.
• Court: New Jersey Supreme Court

Page 91

3 N.J. 91

69 A.2d 19

SHADE v. COLGATE et al.

No. M--3.

Supreme Court of New Jersey.

Argued Oct. 17, 1949.

Decided Nov. 7, 1949.

Edward J. O'Mara, Jersey City, argued the motion for the respondents (O'Mara, Conway & Schumann, Jersey City, attorneys).

Alfred L. Kettell, Jersey City, argued the motion for the appellant; John J. Fallon, Hoboken, and Cornelius P. Cotter, New York City, of the New York Bar on the brief.

The opinion of the court was delivered by

OLIPHANT, J.

This is a motion to dismiss an appeal for lack of jurisdiction by this Court.

The action was instituted in the Court of Chancery on February 27, 1943. The cause was referred to a Master who filed his Report on September 9, 1948. Objections were taken to the Master's Report by the appellant and on December 20, 1948 the Superior Court, Chancery Division, overruled the objections and entered a final judgment in favor of the respondents, approving the Master's Report.

On January 3, 1949, the appellant filed a notice of appeal to the Appellate Division of the Superior Court and on July 2, 1949 that tribunal unanimously affirmed the judgment of the Chancery Division. On August 19, 1949 appellant filed a notice of appeal from that judgment to this Court.

The respondent moves to dismiss the appeal on the ground that this Court is without jurisdiction because no appeal lies to this Court from such judgment under the Constitution, the statutes or the rules of the Supreme Court.

It is conceded that the appellant has no express constitutional right of appeal by virtue of Article VI, section V, paragraph 2, R.S. Constitution (1947), N.J.S.A., and that the appellant would have had the right to appeal from a decree of the Court of Chancery to the Court of Errors and Appeals under Article VI, section 1, paragraph 1, R.S. Constitution (1844), N.J.S.A.

The appellant admits the so-called 'Transfer of Causes Act', P.L.1948, Chapter 367, R.S. 2:16--70 et seq., N.J.S.A., fails to expressly or specifically allow an appeal under the circumstances here presented but argues the statute is remedial and should be broadly construed so as not to deprive him of what he alleges is his 'vested' right of appeal which he had by virtue of the Constitution (1844).

The appellant relies on R.S.Const. 1947, Article XI, section 1, paragraph 4, N.J.S.A., and the opinion of this Court in Giordano v. City Commission of City of Newark, 2 N.J. 585, 67 A.2d 454 (Sup.Ct.1949).

In that case we pointed out that Section 12, P.L.1948, Chapter 367, R.S. 2:16--81, N.J.S.A., applied only to appeals from adjudications made prior to September 15, 1948 provided such appeals were taken within the time limited for such appeals. We made it equally clear that the Constitution (1947) gave to each aggrieved party only one appeal as a matter of right; and that section 13, R.S. 2:16--82, N.J.S.A., preserved a right of appeal to this Court from judgments of the Appellate Division in appeals which were pending on September 15, 1948, where an appeal could have been taken to the Court of Errors and Appeals from the former Supreme Court had the Constitution (1947) not been adopted. As a matter of construction, we held that a review by certiorari was in fact an appeal where the certiorari is considered in the nature of a writ of error or an appeal. If we had not so held a right of appeal from a judgment, which was technically a final judgment in a court of original jurisdiction, would have been unintentionally abrogated.

P.L.1948, Chapter 367, section 12, R.S. 2:16--81, allows a direct appeal to this Court from a Court of Chancery decree, interlocutory or final, entered prior to September 15, 1948 and as to such causes preserved the right of appeal direct to the court of last resort which existed under Article VI, section 1, paragraph 1, Constitution (1844). Under Article VI, Section V, paragraph 2, Constitution (1947), an appeal from a judgment of the Superior Court, Chancery Division must be taken to the Appellate Division of the Superior Court. Both the Constitution (1947) and the statute allow but this one appeal as of right from Chancery Division judgments entered subsequent to September 15, 1948 in lieu of a direct appeal to this Court theretofore permissible under the Constitution (1844).

If a judgment of the Appellate Division on appeal from a judgment of the Chancery Division does not fall within the classes defined in Article VI, Section V, paragraph 1, (a) and (b), an appeal from such judgment is not cognizable by this Court until it is certified pursuant to paragraph 1(d) of the same section. An appeal from a judgment of the Chancery Division may likewise be certified directly to this Court under paragraph 1(d) of the section.

The appellant insists, however, that the constitutional provisions and the statute can only apply prospectively from September 15, 1948, because otherwise there will be unconstitutional impairment of the jurisdiction of a constitutional court and the appellant will thereby be deprived of a vested right of appeal. He argues his right of appeal to a court to last resort became vested in 1943, at the time his action was instituted in the Court of Chancery and remained vested during the pendency of that action.

By the great weight of authority, a party can acquire no vested right to an appeal or other proceeding for review; it is a mere matter of further and additional remedy which may be accordingly taken away by a retroactive statute or constitutional amendment, 12 C.J., § 588, page 986; 16 C.J.S., Constitutional Law, § 272; 11 Amer.Juris., sec. 374, p. 1202; 2 Cooley's Constitutional Limitations (8th Ed.) p. 794, 840, and in the absence of a constitutional guaranty a party to a suit has no vested right of appeal or writ of error from one court to another. Ex parte...