On appeal from the Appellate Division of the Superior Court.
For modification -- Chief Justice Vanderbilt, and Justices Oliphant, Jacobs and Brennan. For reversal -- Justices Heher, Wachenfeld and Burling. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J. (dissenting). Wachenfeld, J. (dissenting).
The procedural history of this case demands attention if we are to preserve the objectives that have been consistently sought in the rules of court of simplicity, dispatch and an adequate hearing on the merits of each controversy.
The defendant was convicted in the Hudson County Court on three indictments charging carnal abuse. On appeal the Appellate Division of the Superior Court reversed the judgment of the trial court on the ground of the insufficiency of the indictments in failing to state the appellant's age, 23 N.J. Super. 511 (1952). We granted the State's petition for certification, 11 N.J. 497 (1953), and after argument reversed the Appellate Division, holding that the indictments were sufficient, 12 N.J. 505 (1953). Our opinion concluded:
"The judgment of the Appellate Division of the Superior Court is reversed, and the judgment of the Hudson County Court is reinstated."
The mandate provided that
"the record and proceedings be remitted to the said Superior Court -- Appellate Division -- to be there proceeded with in accordance with the rules and practice relating to that court, consistent with the opinion of this Court."
The defendant petitioned this court for a rehearing on the ground that on the original appeal to the Appellate Division he had asserted other grounds for a reversal of his conviction that the Appellate Division in reversing on the insufficiency of the indictments had failed to consider and that therefore the Supreme Court should consider them in disposing of his appeal despite the fact that these points were not briefed, argued or mentioned on the appeal here. Indeed, they were not even brought to the attention of this court on the appeal, though they were alluded to briefly in the
defendant's answer to the petition for certification. We denied the defendant's petition for a rehearing and remanded the cause. In accordance with our opinion and mandate the Appellate Division refused to permit the defendant to reargue the additional points raised but not passed on there, saying that its "only function [in the circumstances] is to carry into effect the mandate of the Supreme Court and that plainly requires that the judgment of the Hudson County Court be reinstated," 27 N.J. Super. 320, 322 (1953). The defendant then sought a reargument there, which was denied. From the judgment of the Appellate Division of the Superior Court the defendant now appeals, claiming that his constitutional rights have been violated.
Although admitting that there are no cases in point here, the defendant contends that it is the duty of the Appellate Division to take up the appeal "where it left off" at the time of the first appeal to this court and therefore that on the coming down of the mandate it should have considered the other points previously raised by the defendant and not passed on by that court. The defendant also argues that where there is a right of appeal under our Constitution he is being denied that right as well as due process and the equal protection of the law by a denial of the right to be heard in full. The State, on the other hand, insists that if the defendant wished to reserve any of the points he argued below he should have filed a cross-petition for certification, contending that any appeal taken on certification is automatically limited to the matters set forth in the appeal for certification.
On this important question of appellate practice we do not find ourselves in accord with the contentions of either side. On an appeal on certification as distinguished from an appeal of right the appellant is limited to the questions on which he sought certification, R.R. 1:10-9, for it would be manifestly unfair to use one set of points to obtain certification and then to argue different grounds on appeal after certification had been granted. But a respondent who is merely seeking to maintain his judgment may brief and argue on the appeal any points that will sustain his judgment
and if he does not brief and argue such points he will be taken to have waived them. Only when the respondent in certification is not relying on his judgment below but is seeking affirmatively to overrule or modify it must he cross-petition for certification. Thus, in Liberty Title & Trust Co. v. Plews, 6 N.J. 28 (1950), in an appeal on certification granted, the respondents attempted to obtain a reversal of the judgment of the Appellate Division on certain points that had not been presented by a cross-petition for certification. We declined to consider these arguments saying:
"These questions, however, are not properly before us. A party may not, following the granting of his opponent's petition for certification, attack the judgment under review without himself having successfully petitioned for certification. If he is to have this court review the action of the court below insofar as it is adverse to him, he must follow the same procedure as if his adversary had taken an appeal as of right. Just as there he must take a cross appeal, so here he must make a cross-petition for certification and succeed on his application. This is the procedure contemplated and provided for by the rules and it has been recognized as a matter of practice. Hopler v. Hill City Coal & Lumber Co., 5 N.J. 466 (Sup. Ct. 1950). Indeed, it would not be reasonable to provide otherwise and thereby give a respondent on an appeal following certification greater rights than a respondent on an appeal taken as of right. Since the exceptants herein did not petition this court for certification to review the decision of the court below insofar as it was adverse to them, they may not here attack that judgment and we need not adjudicate the questions they now seek to raise." (6 N.J. at page 45.)
The rule is entirely different, however, where the respondent as here is seeking merely to sustain the judgment below. He is not seeking affirmative relief and accordingly a cross petition for certification is not required.
All the arguments on which the respondent relies in upholding his judgment below must be presented to this court or be deemed to be waived. This process enables us to arrive at a decision on the merits of the case, since we are interested in the propriety of the action appealed from rather than in the reasons advanced by the court below in support thereof, Hughes v. ...