Smith v. Smith, A--455

• Citation: 17 N.J.Super. 128,85 A.2d 523
• Decision Date: 12 December 1951
• Docket Number: No. A--455,A--455
• Parties: SMITH v. SMITH et al.
• Court: New Jersey Superior Court – Appellate Division

Page 128

17 N.J.Super. 128

85 A.2d 523

SMITH v. SMITH et al.

No. A--455.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 3, 1951.

Decided Dec. 12, 1951.

Michael G. Alenick, Newark, argued the cause for appellant.

Jules E. Tepper, Newark, argued the cause for respondents (Tepper, Tepper & Verney, Newark, attorneys; Ira D. Dorian, Cranford, on the brief).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

The sole inquiry addressed to us by the plaintiff-appellant is 'did the trial court err in denying the requests of counsel to present additional testimony?' Counsel for the appellant with becoming frankness and candor states in his reply brief, 'to reduce discussion and to pinpoint the issue, for all practical purposes it may be conceded that the proofs, up to the time of the defendants' motion for dismissal, did not establish a Prima facie case.' The trial occurred in the Chancery Division where on motion on behalf of the defendants the action was dismissed in consequence of the inadequacy of essential proof.

Some measure of significance must also be attributed to the evident fact that it was not until after counsel for the plaintiff had announced the conclusion of his introduction of the evidence, rested his affirmative branch of the case, and after the hearing of the arguments on the motion to dismiss, that a somewhat qualified request was on a subsequent date made to present additional testimony. The present protest is that the trial judge erroneously exercised his discretion in denying the request.

Well embedded in legal nomenclature and in judicial parlance are the terms 'judicial discretion' and its companion 'abuse of discretion.' It has been often apprehended that the latter term has been unhappily composed especially where such intensifying adjectives as 'gross' and 'palpable' are attached to it, in that it has the likely implication of a charge of bad faith, perversity, partiality, or some other improper motivating influence. Vide, Hager v. Weber, 7 N.J. 201, 81 A.2d 155, concurring opinion at p. 213 (1951). We have chosen to denominate the course of conduct occasionally constituting reversible error in such instances as a 'mistaken exercise of discretion.'

Judicial discretion is an indispensable ingredient of judicial power. The trial judge must be invested with the magistracy of the courtroom procedure. Among his powers, yes duties, are those of presiding, of preserving order and decorum, of regulating the conduct of those who participate in the proceedings, the granting of continuances, and of so supervising the trial that there may be such economy of time, effort and expense as is commensurate with the rights of the parties to present their claims and defenses.

It has been said that judicial discretion is that discretion which is not and cannot be governed by any fixed principles and definite rules because the possible eventualities to be dealt with in the exercise of that power cannot be specifically catalogued. Such a definition obviously offends accuracy. Chief Justice Marshall in his decision rendered in Osborn v. President, etc., U.S. Bank, 22 U.S. 738, 9 Wheat. 738, 866, 6 L.Ed 204 (1824), stated: 'Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect * * * to the will of the law.'

Lord Mansfield had said in Rex v. Wilkes, 4 Burr. 2527, that judicial discretion 'means sound discretion, guided by law. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful, but legal and regular.'

Perhaps a more accurate composite definition is that 'judicial discretion' is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case. 23 Words & Phrases 278; Brandon v. Montclair, 124 N.J.L. 135, 11 A.2d 304 (Sup.Ct.1940), affirmed 125 N.J.L. 367, 15 A.2d 598 (E. & A.1940); Beronio v. Pension Commission of Hoboken, 130 N.J.L. 620, 33 A.2d 855 (E. & A.1943); Hoffman v. Maloratsky, 112 N.J.Eq. 333, 164 A. 260 (E. & A.1933).

And so it is universally recognized that the authority to exercise judicial discretion is not an arbitrary power of the individual judge, to be exercised when, and as, his caprice, or passion, or partiality may dictate, or forsooth as his vindictiveness or his idiosyncrasies may inspire.

From an acquaintance with the more impressive judicial utterances on the subject of abuse of discretion, it will be deduced that there are two conditions which must exist to warrant an appellate court in nullifying a ruling of the trial court made in the exercise of a conceded discretion. The first is that the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances, and the second condition is that the ruling must have resulted prejudicially to the rights of the party complaining.

With relation to the first condition it is not to be supposed that a mere difference in judicial opinion concerning the feasibility, expediency or pragmatical propriety of the ruling is synonymous with abuse of judicial discretion. State v. Wood, 23 N.J.L. 560, 564 (E. & A.1847); Day v. Donohue, 62 N.J.L. 380, 383, 41 A. 934 (E. & A.1898).

Anent the second condition, Justice Southard in the early case of Ogden v. Gibbons, 5 N.J.L. 598, 612 (*518) (Sup.Ct.1819), remarked (at page 626 (*531)): 'But the inquiry always is, Has injustice been done? has the party been injured? If he have not, no good reason can be given why he should receive the favor of trying his cause over again.' In accord, Wait v. Krewson, 59 N.J.L. 71, 35 A. 742 (Sup.Ct.1896). Essentially it is the manifest denial of justice to a party that constitutes an abuse of discretion.

Then underlying all is the ancient principle of law that every act of a court of competent jurisdiction shall be presumed to have been rightly done until the contrary is proved. Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium. Co. Litt. 232. Each case must be decided upon its own facts.

The application which was denied in the present case was tantamount to a request for a continuance and prolongation of the trial. That such an application is addressed to the sound discretion of the trial judge is undoubted. Equally indubitable is the rule that the appellate court will not interfere with the exercise of that discretion unless the action of the trial court is Plainly erroneous and Manifestly a misuse of its discretion. Michael v. Southern Lumber Co., 101 N.J.L. 1, 127 A. 580 (Sup.Ct.1925).

It must not be anticipated by the bar that under the authority of Rules 1:2--20 and 4:2--6 we are on appeal to ignore or depreciate the regard heretofore accorded the rulings of the trial judges in matters of judicial discretion and invalidate such determinations merely because from our examination of the record we believe that we would have decided differently. Cf. Faux v. Willett, 69 N.J.L. 52, 54 A. 520 (Sup.Ct.1903); Bowell v. Public Service Corporation, 77 N.J.L. 231, 71 A. 119 (Sup.Ct.1908); Bowen v. Healy's, Inc., 16 N.J.Misc.R. 113, 115, 197 A. 655 (Cir.Ct.1938).

In the matter Sub judice the denial of the belated application was clearly within the bounds of sound discretion. The circumstances may be summarized.

The plaintiff instituted and prosecuted this action to establish that his brother George utilized his wife, son, brother-in-law, and certain designated corporations as receptacles and instrumentalities to conceal his own assets and thereby to defraud his...