Shammas v. Shammas

• Decision Date: 28 April 1952
• Docket Number: No. A--107,A--107
• Citation: 9 N.J. 321,88 A.2d 204
• Parties: SHAMMAS v. SHAMMAS.
• Court: New Jersey Supreme Court

Page 321

9 N.J. 321

88 A.2d 204

SHAMMAS v. SHAMMAS.

No. A--107.

Supreme Court of New Jersey.

Argued March 31, 1952.

Decided April 28, 1952.

Thomas F. Meehan, Jersey City, argued the cause for appellant (John J. Meehan, Jersey City, attorney. J. Mortimer Rubenstein, Paterson, of counsel).

William W. Evans, Paterson, argued the cause for respondents (Evans, Hand & Evans, Paterson, attorneys).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, JR., J.

Charles Shammas filed a petition for divorce from Mary Shammas in the former Court of Chancery of May 4, 1947 alleging desertion. Mary Shammas answered denying the desertion and alleged that Charles Shammas after their marriage had returned to Syria and there entered into a bigamous marriage with one Bahia Deeb and lived in adultery with her. At the final hearing Shammas denied on cross-examination that he contracted a marriage with Bahia Deeb or committed adultery with her. Before the case was fully tried a money settlement was made and Mary Shammas withdrew her answer and abandoned her defense to the desertion charge. The cause proceeded uncontested and a decree Nisi was entered April 20, 1948 and made final July 21, 1948.

Charles Shammas then married Mary Koodray, who died April 11, 1949, intestate, survived by Charles Shammas and six children of a former marriage. On May 2, 1949 letters of administration of her estate were issued to William W. Evans and William K. Azar, members of the bar of this State and, respectively, the attorney of the children and the attorney of Charles Shammas.

On October 24, 1949, Mr. Evans, as administrator, filed a petition in the cause (Mr. Azar subsequently was admitted as a co-petitioner), praying that the decrees Nisi and final be set aside and that Charles Shammas be adjudged guilty of contempt on the ground that his denial under oath that he entered into a bigamous marriage with Bahia Deeb and committed adultery with her was wilfully false and constituted a fraud upon the court. An order to show cause issued and after hearing, at which Mary Shammas did not appear and was not represented and Charles Shammas alone made a defense, the Chancery Division found that Shammas' testimony at the final hearing on his divorce petition was wilfully false in the particulars charged and entered an order on September 24, 1951 vacating and setting aside the decrees Nisi and final and adjudging him guilty of contempt of court. Shammas appealed from said order to the Appellate Division and the appeal has been certified here on our own motion.

The power of our courts at the instance of a party to open a final judgment in a civil action upon good cause shown has long been settled beyond controversy. Assets Development Co. v. Wall, 97 N.J.L. 468, 119 A. 10 (E. & A.1922). Rule 3:60--2 merely declares the previously existing law in that regard. It reads:

'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which would probably alter the judgment, order or proceeding and which by due diligence could not have been discovered in time to move for a new trial under Rule 3:59--2; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment or order is void; (5) the judgment or order has been satisfied, released, or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (6) any other reason justifying relief from the operation of the judgment or order. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under Rule 3:60--2 does not suspend the operation of any judgment, order or proceeding or affect the finality of a final judgment. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding; nor does it limit the court's power to set aside a judgment, order or proceeding for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, venire facias de novo, motions to award a repleader, to arrest a judgment or, to give judgment notwithstanding a verdict, bills of review, bills in the nature of a bill of review and petitions for rehearing are superseded, and the procedure for obtaining a new trial or any relief from a judgment or order shall be by motion as prescribed in these rules or, where such relief is sought, by an independent action.'

The rule simplifies the procedure and permits the exercise of the power to open a final judgment, for the reasons specified in subdivisions (1), (2) and (3), upon motion made within a reasonable time not more than one year after the entry of the final judgment (see, however, as to this time limit, Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949), remand modified in 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 1099 (1949), and Wilford v. Sigmund Eisner Company, 13 N.J.Super. 27, 80 A.2d 222 (App.Div.1951)), and, for the reasons specified in subdivisions (4), (5) and (6) and for fraud upon the court, without limitation as to time. The proceeding by motion in the cause, although not limiting the power of the court to entertain an independent action in a proper case, supersedes the largely obsolete ancillary common law and equitable procedures listed in the rule and is declaratory of the long standing policy of our law to require that relief from a final judgment of a court of this State be sought in the action in which the judgment was rendered when that remedy is adequate. Kearns v. Kearns,70 N.J.Eq. 483, 62 A. 305 (Ch.1905). The motion procedure applies to relief sought upon the ground of fraud upon the court, differing from the requirement under the comparable amended Federal Rule 60(b), 28 U.S.C.A., that relief on that ground must be the subject of an independent action. Tentative Draft, Rules Governing all of the Courts of New Jersey, Comment on fourth sentence of Rule 3:60--2, p. 224.

However, relief for any reason allowed by Rule 3:60--2 rests in the sound discretion of the trial court, controlled by established principles. Equitable principles are the guide in administering relief to determine whether in the particular circumstances justice and equity require that relief be granted or denied. La Bell v. Quasdorf, 116 N.J.L. 368, 184 A. 750 (Sup.Ct.1936).

Perjurious testimony alone and not accompanied or concealed by other and collateral acts of fraud may be a ground for relief as a fraud upon the court in a proper case. The contrary view expressed in United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), and recently repeated in Dowdy v. Hawfield, 88 U.S.App.D.C. 241, 189 F.2d 637 (Ct.App., D.C.1951), certiorari denied 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. ---(1951), when interpreting Federal Rule 60(b) is not favored by us. That view holds that perjurious testimony standing alone is intrinsic fraud and that relief for a fraud upon the court is limited to 'frauds, extrinsic or collateral, to the matter tried by the court.' A public policy that there be an end to litigation is given for the distinction: '* * * the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses * * *, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.' United States v. Throckmorton, supra, 98 U.S. at pages 68--69, 25 L.Ed. at page 96. Whether the Throckmorton principle is still controlling law in the federal courts is not clear. It has been suggested that the case may have been overruled by the subsequent decision in Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870 (1891). Publicker v. Shallcross, 3 Cir., 106 F.2d 949, 126 A.L.R. 386 (C.C.A.3 1939), certiorari denied 308 U.S. 624, 60 S.Ct. 379, 84 L.Ed. 521 (1940). However, both decisions were cited in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), without giving a clear answer to the question. And see Josserand v. Taylor, 159 F.2d 249, 34 C.C.P.A., Patents, 824 (Ct.Cust. & Pat.App.1946); Annotations, 126 A.L.R. 390; 88 A.L.R. 1201. Both Rule 3:60--2 and Federal Rule 60(b) expressly abandon the distinction for the purposes of a motion by a party, or his legal representative, made within one year of the final judgment by providing that 'the court may relieve a party or his legal representative from a final judgment * * * for * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic) * * * of an adverse party'. Balip Automotive Repairs, Inc., v. Atlantic Casualty Ins. Co., 7 N.J. 152, 81 A.2d 9 (1951), affirming, Balip Automotive Repairs, Inc., v. Schroeder, 8 N.J.Super. 238, 73 A.2d 848 (App.Div.1950) which reversed on the merits 6 N.J.Super. 511 (Law Div.1949). However, the fourth sentence of the two rules allowing relief without time limitation for 'fraud upon the court' is not similarly specific. Nevertheless, upon principle, we hold that relief for fraud upon the court may be allowed under our rule whether the fraud charged is denominated intrinsic or extrinsic. The notion that repeated retrials of cases may be expected to follow the setting aside of judgments rendered on false testimony will not withstand critical analysis. Rather it is more logical to anticipate that the guilty litigant committing or suborning testimony will not risk pursuing the cause further. And, in any event, a court may not set aside a final judgment merely because some testimony is perjured. All...