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Amo v. Genovese

Decided: December 21, 1951.

THEODORE AMO, AN INFANT, BY HIS GUARDIAN AD LITEM, IVAN J. AMO, IVAN J. AMO AND VIOLET J. AMO, INDIVIDUALLY, BEULAH LEADBITTER AND HAROLD LEADBITTER, PLAINTIFFS-RESPONDENTS,
v.
VITO GENOVESE AND PHILIP GENOVESE, DEFENDANTS-APPELLANTS



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

Jayne

"We must never forget that courts exist for the sole purpose of rendering justice according to law. No eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case." Pepe v. Urban , 11 N.J. Super. 385, 389 (App. Div. 1951).

We may suppose that the objects of the law are the same today as they were in the most rudimentary stages of its growth. Whether we think of the days when the prevalent thought was that might makes right or of the modern times when human insight and rationalization are regarded to be much more acute in the accomplishment of the purposes of the blind goddess, we cannot escape the conclusion that the object of all social laws is that the members of society shall be accorded the benefit of speedy, complete and exact justice.

It is exceedingly desirable, if not imperative, that in the

disposition of the modern quantity of litigation, expedition must supplant languor, but never at the expense of justice.

It remains true today that in the domain of the courtroom the judge is the center of power and authority, yet it must be apparent to one familiar with the atmosphere of a courtroom that written rules of procedure cannot be made sufficiently specific to fit all of the various emergencies of particular cases. In such exigencies, since the judge is nevertheless bound to act, he must not dedicate his attention so much to what is the most nimble and expeditious thing to do but rather to what is the fair, just and reasonable thing to do, and in so acting he exercises that power of decision designated as "judicial discretion."

In considering the subjects of "judicial discretion" and its less familiar companion "abuse of discretion," attention is invited to our recent decision in Smith v. Smith , 17 N.J. Super. 128 (App. Div. 1951), wherein we stated:

"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, ...


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