Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shade v. Colgate

Decided: November 7, 1949.

FRANK L. SHADE, PLAINTIFF-APPELLANT,
v.
SAMUEL BAYARD COLGATE, SOMETIMES KNOWN AS S. BAYARD COLGATE, ETC., ET AL., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Appellate Division.

For granting the motion -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Oliphant, J.

Oliphant

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, Constitution (1947) 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, Constitution (1844).

The appellant admits the so-called "Transfer of Causes Act," P.L. 1948, c. 367, 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 Article XI, section 1, paragraph 4, and the opinion of this court in Giordano v. City Commission of City of Newark, 2 N.J. 585 (Sup. Ct. 1949).

In that case we pointed out that section 12, P.L. 1948, c. 367, 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 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, c. 367, ยง 12, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.