On August 4, 1952 the will of Robert Hoffstedt, a resident, was probated in the Union County Surrogate's Office. On January 29, 1953 County Judge Walter L. Hetfield, III, signed an order dismissing a motion made on behalf of a son of the deceased, for an order to show cause why the probate should not be set aside. The reason given was that the application was expressly made under the wrong rule, and that the affidavit of non-residence was defective. This decision was not appealed. The time to file new papers expired on February 3, 1953, but no new papers were filed on or before that date.
On February 19, 1953 the attorney for the son served, and on February 20, 1953 filed, the following notice:
"Take notice that on the 12th day of March, 1953 at 10:00 o'clock in the forenoon or as soon thereafter as counsel can be heard, the undersigned attorney for Robert Lee Hoffstedt will apply to the Union County Court, Probate Division, and located in the Court House Building in the City of Elizabeth, New Jersey, and will move for the following, viz.:
(a) For leave of the Court to file the attached motion herein nunc pro tunc and as of February 3, 1953, and
(b) For an order requiring Bertha Mading to show cause why the judgment of the probate of the said Will should not be set aside or modified, upon the grounds as fully set forth in the annexed affidavits."
Mr. Alper's affidavit annexed to the notice states that, "I make this affidavit in support of a motion to permit the said Robert Hoffstedt to file his notice of motion nunc pro tunc and as within time, and that the matter be heard on its merits."
The record shows that the notice was filed on February 20, 1953, and the court is asked for leave to file it again as of February 3, 1953 so as to bring the application within the six-month period. Since the motion has already been filed, the court cannot order it filed again as of another and untrue date. Nor would filing the notice as of February 3, 1953 alter the fact that the motion was not actually served until February 19, 1953. The notice was served too late and an application for leave to file it nunc pro tunc is not the proper proceeding in this case. The motion is to have the court alter the record so that it will show an untrue date of service, and to grant a rule to show cause based on such untrue date.
Filing nunc pro tunc is usually permitted where the court itself is at fault, as where an interlocutory order or judgment has not been entered through the fault of the court, the court will permit it to be entered as of the day on which the party became entitled to it. Atanasio v. Silverman , 1 N.J. 245 (1949).
"There may be cases in which the parties are entitled to have such an entry made when they themselves have caused delay, but never so as to disturb a status or impair rights." Rinehart v. Rinehart , 91 N.J. Eq. 354, 110 A. 29 (Ch. 1920).
Rule 3:6-1 provides as follows:
"When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without notice order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; or the period before or after its expiration may be enlarged by consent in ...