On appeal on certification to the Superior Court, Appellate Division, whose opinion is reported in 8 N.J. Super. 6.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
This appeal, here by certification to the Appellate Division, is from a judgment of that court which modified a judgment of the Somerset County Court, Probate Division, dated November 18, 1949, which settled the final accounting of the executors of the estate of Emile Pfizer and allowed commissions to the executors, and counsel fees. On December 28 and 29, 1949, the respondents here served notices of appeal from the judgment of the Somerset County Court on the executors and thereafter, on January 5, 1950, filed said notices of appeal in the Office of the Clerk of the Somerset County Court, 48 days after the entry of the judgment.
These appellants then, on February 1, 1950, served and filed a notice of motion in the Appellate Division to dismiss the appeals and on February 9th, the respondents here filed a notice of cross-motion that in the event it be decided the notices of appeal were not filed in time, that the time for filing the same be extended under Rules 3:6-1 and 4:6-2, or that the court direct that they be filed nunc pro tunc as within time.
The Appellate Division, though admitting they were not perfected within time, denied the motion to dismiss the appeals and decided the cause on the merits and modified the judgment below by reducing the sum of the commissions granted the executors and the allowances to counsel. It held it had the discretionary power to decline to dismiss the appeal by reason of Art. VI, Sec. IV, par. 3 of the Constitution of 1844 which gave an appeal from the Orphans' Court to the Prerogative Court and that the Legislature could not abridge the jurisdiction of the latter court to review an order of the lower court fixing executor's commissions, citing Anderson v. Berry, 15 N.J. Eq. 232 (Prerog. 1862). At that time the statutory time for appeal was 30 days and in the opinion it was pointed out that in In re Casey, 127 N.J. Eq. 101 (E. & A. 1940), and Heise v. Earle, 134 N.J. Eq. 393 (E. & A. 1944), the former Court of Errors and Appeals held that the Prerogative Court had unquestioned power to refuse to dismiss an appeal taken out of time when equity and justice
dictated such a course. The Appellate Division took the position that because the present Constitution, Art. VI, Sec. V, par. 2, gives an appeal to the Appellate Division from the County Courts and by Art. XI, Sec. IV, par. 3 which provides, with respect to the former Prerogative Court and other former constitutional courts, that "all their jurisdictions, functions, powers and duties shall be transferred to and divided between the new Supreme Court and the Superior Court, according as jurisdiction is vested in each of them under this Constitution" and that the Appellate Division now has the discretionary power of the old Prerogative Court over appeals from the former Orphans' Courts and that the Supreme Court in promulgating its rules did not destroy that power.
We cannot agree with this line of reasoning. Art. VI, Sec. II, par. 3 of the Constitution of 1947 specifically and unequivocally vests in the Supreme Court exclusively the rulemaking power, subject to law, with respect to practice and procedure in all the courts. Art. VI, Sec. III, par. 1 provides that the judges of the Superior Court "shall exercise the powers of the court subject to rules of the Supreme Court" and paragraph 3 of the same section provides that each division of the Superior Court "shall * * * hear such causes, as may be provided by rules of the Supreme Court."
The Prerogative Court was abolished by our new Constitution and its jurisdiction was transferred to the Superior Court, Art. XI, Sec. IV, par. 3, which provides:
"The Court of Errors and Appeals, the present Supreme Court, the Court of Chancery, the Prerogative Court and the Circuit Courts shall be abolished when the Judicial Article of this Constitution takes effect; and all their jurisdiction, functions, powers and duties shall be transferred to and divided between the new Supreme Court and the Superior Court according as jurisdiction is vested in each of them under this Constitution."
But that jurisdiction did not include all of the Prerogative Court's powers, for the jurisdiction of that court with respect to practice and procedure had been vested in the new Supreme Court. If it were otherwise, as the Appellate Division held and the respondents contend, the Supreme Court
would not exercise the sole rule-making power with respect to practice and procedure for the Superior Court along with all the other courts of the State. The Superior Court by virtue of its having acceded to the jurisdiction formerly possessed by the former Court of Chancery, Prerogative Court and the Supreme Court would have all of the rule-making power which those courts had previously possessed. Such a situation obviously was not intended by the framers of the new Constitution. Such a construction cannot be read into that document and cannot be tolerated for it would result in the restoration of many of the evils which the Constitution was designed to eliminate. The purpose of giving the rule-making power to the Supreme Court was all part and parcel of an integrated judicial system which is designed to effect prompt, adequate, and complete relief ...