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Stern v. Glassen

Decided: December 1, 1952.

SADIE STERN, PLAINTIFF-RESPONDENT,
v.
ALBERT GLASSEN AND JOHN MARTIN, DEFENDANTS-APPELLANTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

This cause comes here by certification and the posed question is whether or not the appeal taken was within time in compliance with our rules.

On March 11, 1951 the defendants were found guilty of criminal contempt. Sentence, however, was postponed from time to time until October 19, 1951, when both defendants were fined $50. The final order and judgment embodying the fine dated October 19, 1951 was not entered or filed until October 24, 1951.

On October 29, 1951, five days later, a notice of appeal was served on the attorney for the plaintiff and a discussion ensued seeking to eliminate the necessity of continuing the

appeal. Although it is disputed, we are assuming a tentative agreement between the parties to move for the entry of a consent order modifying and amending the final judgment to read civil rather than criminal contempt. They also agreed amongst themselves to withhold the filing of the notice of appeal pending the final determination so as not to oust the trial court of jurisdiction.

A consent order containing such modification was prepared and an informal discussion occurred between defendants' counsel and the court, the substance of which is not disclosed by the record.

On November 9 the motion to modify and amend the final judgment was presented to the court which, despite the consent of the respective parties to the order therefor, denied the motion. The next day notice of appeal was mailed to the Clerk of the Superior Court, but the record shows it was not filed until November 14, 1951.

The following month the plaintiff's attorney consented to the entry of an order extending the time of the defendants to prepare and file briefs in their appeal and then, in January, made a motion, which the Appellate Division granted, to dismiss the appeal because it had not been effected within the time limit provided for by Rules 1:2-5 and 4:2-5.

The appellants now argue the bona fide efforts of counsel to eliminate the necessity of an appeal and their course of conduct in withholding the filing of the notice of appeal until the lower court could act to effectuate the desired result tolled the time for the filing of the notice of appeal.

The appellants rely on Rule 1:2-6(b), which provides for the tolling of the running of the time for appeal by a timely motion to alter or amend a judgment made pursuant to Rule 3:59-6; and they assert ...


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