Jacobs, Donges and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.
This is an appeal from a judgment of the Somerset County Court, allowing commissions to the executors of the will of Emile Pfizer, deceased, and counsel fees to their attorneys.
The decedent died July 31, 1941, a resident of Somerset County, leaving an estate that was inventoried at $2,815,832. As of August 1, 1942, the executors filed their first intermediate account and the same was passed by a decree of the Orphans' Court which awarded to the executors commissions of $85,272, being 3% on the amount of corpus coming to their hands to be administered, and allowed to their counsel, Mr. William Huck, Jr., a fee of $50,000. The executors' second and final account was filed in July, 1949, and showed additional corpus receipts of $94,754, being gains from the sale or redemption of securities. The court approved the account and allowed additional commissions on corpus of $61,982, and fees of $75,000 to Mr. Huck and $35,000 to Mr. Sydney G. Soons, counsel in New York tax matters. It is from the allowances on the final accounting that the appeal is taken.
Last winter, the respondent moved to dismiss the appeal on the ground that it was not taken within time, and the appellants responded by moving that their notice of appeal be considered as filed nunc pro tunc. Decision on the motions was deferred until the hearing of the appeal on the merits. The judgment of the County Court was entered November
18, 1949, and notice of appeal was served 40 days thereafter on December 28th. But the notice was not filed until Thursday, January 5, 1950, 48 days after the entry of the judgment. Rule 1:2-4(a) provides: "Where an appeal is permitted, it may be taken in any cause by serving a copy of a notice of appeal upon the attorney for the respondent and filing the notice in duplicate with service acknowledged on one copy, or with an affidavit of service annexed thereto, with the court from which the appeal is being taken." Rule 4:2-4 enacts that the provisions of Rule 1:2-4 shall apply to appeals to the Appellate Division. Neither of the rules cited limits the time within which an appeal may be taken.
Rule 1:2-5 provides: "Where an appeal is permitted, it shall be taken to the appropriate appellate court within the following periods of time after the entry of the judgment, order or determination appealed from: * * * (b) Final judgments of the county courts or trial divisions of the Superior Court in civil causes, 45 days * * *."
Rule 4:2-5 makes the time provided for in Rule 1:2-5 applicable to appeals to the Appellate Division. We are satisfied that both the service of the notice of appeal and the filing of the notice are requisite to complete the appeal; that both these steps should be taken within the period of 45 days, and that failure to file the notice within time ordinarily requires a dismissal of the appeal. In re Horton , 1 N.J. 571 (1949); Winberry v. Salisbury , 5 N.J. Super. 30 (App. Div. 1949).
But the able lawyer who had charge of taking the appeal in this cause understood otherwise. He found in Rule 3:5-5 that papers which are served must be filed within 10 days thereafter. This rule, like all rules in Part III, seemed to apply to all divisions of the Superior Court, including the Appellate Division. Rule 3:1-1. He concluded that while service of the notice of appeal must be taken within 45 days, the notice might be filed any time within 10 days after service. Although, as stated above, we disagree with his conclusion, we consider it at least plausible. There also appears to be merit in the appeal; but that subject we will discuss
later. And no delay has been caused by failure to file the notice within time.
Clearly this is a case in which discretion should move us to deny the motion to dismiss. But Rules 1:7-9 and 4:1-10 forbid the extension of time for taking an appeal. When time is not extended, the filing is out of time, of course, but is a dismissal mandatory?
The Constitution of 1844 expressly gave an appeal from the Orphans' Court to the Prerogative Court. Art. VI, sec. IV (3). The Legislature could not abridge the jurisdiction of the latter court to review an order of the lower court fixing executors' commissions. Anderson v. Berry , 15 N.J. Eq. 232 (Green, C. , 1855). By statute, it was provided that the appeal be demanded (the word used in the original enactment) or taken within 30 days. R.S. 2:31-94. Then in Mount v. Van Ness , 34 N.J. Eq. 523 (1881), Ordinary Runyon refused to dismiss an appeal not taken within the statutory period, when the default was caused by a mistake of the surrogate. Many years later, the Court of Errors and Appeals held that the Prerogative Court had unquestionable power to refuse ...