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Bowman v. Bambara

Decided: October 28, 1953.

PAUL E. BOWMAN, DOING BUSINESS AS BOWMAN ENGINEERING CO., PLAINTIFF-APPELLANT,
v.
A. JOHN BAMBARA, DEFENDANT-RESPONDENT. PAUL E. BOWMAN, TRADING AS BOWMAN ENGINEERING CO., PLAINTIFF-APPELLANT, V. AMERICAN CONCRETE PIPE COMPANY, INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



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

Eastwood

The plaintiff appeals from the judgments of the trial court denying his applications for relief from judgments of dismissal with prejudice theretofore entered.

A chronology of events seems proper. On January 4, 1951 and January 8, 1951, respectively, plaintiff filed complaints against the defendants A. John Bambara and American Concrete Pipe Company, Inc., to which in due course answers were filed by the named defendants. On April 30, 1951 plaintiff discharged his counsel. At the scheduled pretrial conference on May 2, 1951 the plaintiff's counsel answered the call and explained to the court his discharge, requesting an adjournment until September 1951 to afford plaintiff an opportunity to secure other counsel. Plaintiff was in attendance at the pretrial and observed what transpired.

A third action had been instituted by the law firm of Bowers, Rhinehart and Murphy, Esquires, on behalf of plaintiff against a different defendant. In August 1951 the county clerk, preparing to mail notices of pretrial conference, contacted plaintiff's original counsel, inquired of plaintiff's substituted counsel and was informed that he believed that Messrs. Bowers, Rhinehart and Murphy were representing

plaintiff. Accordingly, notice of the pretrial conference scheduled for September 7, 1951 was mailed to that law firm. Mr. Murphy denied receipt of the notices and plaintiff asserted that he did not receive notice from anyone that the pretrials were so scheduled.

On the morning of September 7, 1951 Mr. Murphy was in court representing plaintiff on another matter. When the plaintiff's cases against Bambara and the Concrete Company were called, the court was informed that Mr. Murphy did not represent plaintiff. Plaintiff failed to respond to the call and counsel for Bambara read to the court a copy of a letter addressed and mailed to the plaintiff advising him of the September 7, 1951 pretrial date and his intended motion to compel plaintiff's answer to interrogatories. No request for a postponement was made on behalf of plaintiff. In this situation the court, on defendant's motion, dismissed plaintiff's actions with prejudice. The counterclaim of the Concrete Company was dismissed without prejudice.

On March 4, 1952 plaintiff applied to the trial court under Rule 3:60-2 (R.R. 4:62-2) for an order to vacate the orders of dismissal on the ground that the court erroneously concluded that plaintiff had notice of the pretrial conference scheduled for September 7, 1951. The court determined the matter adversely to plaintiff and denied his motions.

The plaintiff contends that his motions under Rule 3:60-2 were timely made after he became aware of the trial court's action; that the county clerk had failed to notify plaintiff of the scheduled September 7, 1951 pre-trial; that the trial court erroneously found that plaintiff received notice of the pretrial through Mr. Murphy and the letter allegedly mailed by Bambara's counsel to plaintiff; that in the absence of a showing of contumacious conduct on the plaintiff's part, the trial court's action of dismissal with prejudice was not warranted; and that the trial court's refusal to re-open its dismissals was an abuse of discretion.

Rule 3:60-2, now R.R. 4:62-2, provides the authority for the court to grant relief from a judgment or order and provides, inter alia:

"On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; * * * The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) not more than 1 year after the judgment, order or proceeding was entered or taken. * * *"

It is clear that relief from the operation of a judgment for reasons set forth by the aforementioned rule rests in the discretion of the trial court. Wilford v. Sigmund Eisner Co. , 13 N.J. Super. 27, 33 (App. Div. 1951). Cf. In re Manfredini , 24 N.J. Super. 59 (App. Div. 1952). In the exercise of that discretion, it has been held ...


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