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.

Smith v. Smith

Decided: December 12, 1951.

HARRY SMITH, PLAINTIFF-APPELLANT,
v.
GEORGE SMITH, ET AL., DEFENDANTS-RESPONDENTS



McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

[17 NJSuper Page 130] 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, 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. U.S. Bank , 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 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940); Beronio v. Pension Commission of Hoboken , 130 N.J.L. 620 (E. & A. 1943); Hoffman v. Maloratsky , 112 N.J. Eq. 333 (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 ...


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.