Warren v. Hague

• Decision Date: 16 January 1951
• Docket Number: No. A--444,A--444
• Citation: 78 A.2d 300,11 N.J.Super. 311
• Parties: WARREN v. HAGUE.
• Court: New Jersey Superior Court — Appellate Division

Page 311

11 N.J.Super. 311

78 A.2d 300

WARREN v. HAGUE.

No. A--444.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 8, 1951.

Decided Jan. 16, 1951.

John Milton, Jersey City, argued the cause for the respondent (Milton, McNulty & Augelli, Jersey City, attorneys).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered

PER CURIAM.

The plaintiff's complaint alleges that the defendant maliciously and willfully libeled him and seeks compensatory and punitive damages. The defendant's amended answer denies the libel and asserts separate defenses. After extended intervening proceedings (Hague v. Warren, 142 N.J.Eq. 257, 59 A.2d 440 (E. & A. 1948)) the plaintiff in April, 1949, served notice that he would take the testimony of the defendant before trial. Rule 3:26--1. At the same time the defendant was served with a subpoena Ad testificandum in regular form, and a lengthy subpoena Duces tecum which directed that he produce numerous documents bearing upon his financial resources. Rule 3:45. Thereafter the defendant served notice that he would apply for an order that the proposed deposition be not taken (Rule 3:30--2), the actual wealth of the defendant be not inquired into, and the scope of the examination be limited, on the ground that the taking of the defendant's deposition and inquiry into his actual wealth, 'in the absence of Prima facie proof of malicious defamation' would be an unlawful search and seizure of his property. The notice further stated that application would be made to quash the subpoenas of the ground that they were unreasonable and oppressive. Rule 3:45--2.

The defendant's motion was duly argued, briefs were submitted, and on July 6, 1949, formal opinion was filed. In this opinion Judge Gioradano expressed his views that before the plaintiff could recover on his claim for punitive damages he would be requjired to establish express malice and since the defendant's actual wealth would only be material thereunder, his examination on that subject should not be permitted without advance Prima facie showing of such malice. But cf. 4 Moore's Federal Practice (2d ed. 1950), pp. 2025, 2031. Thereupon, on August 12, 1949, an order was entered directing 'that the deposition of defendant, proposed to be taken by plaintiff, be not taken, and that the subpoena commanding defendant to testify be quashed.' We gather from the colloquy preceding the entry of this order that the court contemplated that it would simply prevent the taking of testimony pursuant to the particular subpoenas theretofore issued. At the argument on appeal counsel for the defendant conceded that although there has been determination by the lower court denying any right in the plaintiff to compel the defendant's testimony as to his actual wealth without advance Prima facie showing of express malice, the plaintiff neverthelss remains at liberty to subpoena, if necessary, and examine the defendant on other matters pursuant to Rule 3:26.

On August 12, 1949 the plaintiff applied for an order fixing a time and place for the taking of the defendant's deposition and prescribing the matters which may not be inquired into. At that time the application was denied but formal order of denial was not signed until March 29, 1950. On April 18, 1950 the plaintiff filed notice of appeal to this court from the orders of August 12, 1949 and March 29, 1950. The defendant moves to dismiss the appeal on the ground that the orders appealed from are interlocutory in nature and do not fall within any of the four classes of interlocutory orders, immediately appealable as such, under Rule 4:2--2. Insofar as the order of August 12, 1949 is concerned, the additional ground is urged that the appeal therefrom was not taken within time. Rules 1:2--5, 4:2--5.

Under our former practice interlocutory appeals were permitted in Chancery but not at law. R.S. 2:29--117, 2:27--349, N.J.S.A. With the unification of our courts and the promulgation of the new Rules, the Supreme Court accepted the prevailing philosophy that partial and successive appeals should be discouraged (Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347 (1949)) and prohibited the taking of interlocutory appeals to this court, as of right, except in the four classes enumerated in Rule 4:2--2. The first class relates to injunctions and the second to receiverships; they are counterparts of the interlocutory appeals long available in the federal courts. 28 U.S.C.A. § 1292. The third class relates to appeals from determinations that the court has jurisdiction over the subject matter or the person and the fourth relates to instances where it is necessary to preserve the Res or Status quo and prevent irreparable injury. In the instant matter it is clear that the orders appealed from are interlocutory in nature and that no questions of jurisdiction or preservation of the Res or Status quo within Rule 4:2--2 are presented. Cf. Behrman v. Egan, 9 N.J.Super. 171, 176, 75 A.2d 627 (App.Div.1950); State v. Cicenia, 9 N.J.Super. 135, 139, 75 A.2d 476 (App.Div.1950). The plaintiff urges, however, that, in effect, the orders restrained the plaintiff from proceeding with his examination of the defendant and may be deemed to be appealable injunctive orders within Rule 4:2--2.

In Enelow v. New York Life Ins. Co., 293 U.S. 379, 381, 55 S.Ct. 310, 311, 79 L.Ed. 440, 442 (1935) Chief Justice Hughes, in construing the federal provision permitting interlocutory appeals from injunctive orders, pointed out that it relates to orders which 'constitute an exercise of equitable jurisdiction...