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Schulwitz v. Shuster

Decided: October 15, 1953.

EDWARD A. SCHULWITZ, PLAINTIFF-RESPONDENT,
v.
CARL N. SHUSTER AND EDITH GILMAN SHUSTER, HIS WIFE, DEFENDANTS-APPELLANTS



Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

The subject of this appeal is the propriety of the order of the Chancery Division denying the motion of defendants, Carl N. Shuster and Edith Gilman Shuster, his wife, to re-open a judgment theretofore entered upon plaintiff's proofs when defendants failed to appear at the trial.

On November 24, 1951 the plaintiff filed his complaint to enjoin the defendants from the use of plaintiff's land, from tearing down fences erected thereon by plaintiff, and for money damages for the destruction of the fences. The summons and complaint were served upon the defendants on December 3, 1951. On October 30, 1952, the date previously set for trial, the plaintiff, his attorney and witnesses appeared, but neither the defendants nor their attorney made any appearance. The court thereupon proceeded with the trial and five witnesses testified in support of the plaintiff's case, and certain documentary evidence was admitted. At the conclusion thereof the court awarded plaintiff an injunction against the defendants and damages in the sum of $81.

On November 14, 1952 copies of the judgment and the taxed costs were served personally upon the defendants. Although the defendants' attorney, Walter P. A. Ensor, Jr., wrote to the trial judge under date of December 11, 1952 that he had given plaintiff's attorney notice of a motion for "a rehearing on the ground that the judgment was granted because of my excusable neglect," he never proceeded with such an application. On January 29, 1953 William Abbotts, Esquire, was substituted as attorney for

defendants. Notice of motion by defendants' attorney, William Abbotts, for relief from the judgment on the ground of the excusable neglect of their first attorney, Mr. Ensor, was mailed to plaintiff's attorney on February 2, 1953.

In considering whether there was sufficient proof before the trial court of excusable neglect to warrant re-opening the judgment, we do not deem it necessary to indulge in a detailed recital of Mr. Ensor's conduct of the litigation. Suffice it to say, that his procrastination in filing required pleadings, his failure to make important appearances in court, to file a trial brief with the court, to answer interrogatories and the deception practiced upon his clients when they queried him on several occasions, amply support the finding that "In the instant case, there can be no question but that defendants' attorney was negligent and negligent to a high degree and that his conduct was inexcusable." With respect to the defendants' neglect, the trial court had this to say:

"* * * I think it may be fairly said that from the time the defendants were served by the Sheriff on June 16, 1952 with notice of plaintiff's motion to enter judgment because of the defendants' failure, or their attorney's failure, to file an answer to the suit, that the defendants had notice of their attorney's neglect and of the necessity, if they continued with the same attorney, of checking up on the attorney to see that the matters were properly taken care of. But it is not shown that the defendants did anything to protect their interests against the neglect of their own attorney until after they were served by the Sheriff on November 14, 1952 with a copy of the judgment entered against them. And even then they did not move with much dispatch because the first step taken by the defendants in seeking relief was the notice mailed to the plaintiff's attorney on February 2, 1953, a lapse of more than 2 1/2 months time."

The defendants consulted Mr. Ensor several times during the progress of the litigation and were lulled into a sense of security by the deception practiced upon them, particularly in his attempt to explain away the judgment and his later feeble attempt to have the judgment vacated by reason of what he termed "my excusable neglect." As Judge Ewart

stated in his letter opinion: "It was his (Ensor's) neglect that was probably responsible for a default judgment having been entered on October 30, 1952, against his clients, the defendants."

The defendants contend that there was an abuse of discretion by the trial court in its denial of their motion to vacate and set aside the judgment.

That the trial court had power to grant the relief sought by the defendants' motion is unquestioned. Relief from the operation of a judgment for any reason allowed by this rule (Rule 3:60-2 (1), now R.R. 4:62-2(a)), rests in the trial court's discretion, controlled by accepted legal principles, whenever such action is appropriate to accomplish justice. Wilford v. Sigmund Eisner Co. , 13 N.J. Super. 27 (App. Div. 1951). A motion for a new trial is addressed to the sound judicial discretion of the trial court and such discretion cannot be arbitrary, vague or fanciful, but rather must be governed by and in accord with established principles of law and is concerned with the question whether justice requires that relief be given under the particular facts established. State v. Bunk , 4 N.J. 482 (1950). An attorney's negligence may be excusable under Rule 3:60-2 so as to entitle his client to relief from default judgment against him, when such negligence is attributable to honest mistake, accident, or any cause not incompatible with proper diligence. Williams v. Knox , 10 N.J. Super. 384 (Law Div. 1951). "However, in such cases the moving party was required to show a meritorious case (cf. Haines v. Seabrook Farms Co. , 99 N.J.L. 273 (E. & A. 1923); Etz v. Weinmann , 106 N.J. Eq. 209 (Ch. 1930); Hanover Trust Co. v. Rizzo , 110 N.J.L. 581 (Sup. Ct. 1933)). These principles of law remain unchanged by ...


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