Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
The single question to be resolved on this appeal is whether the trial court abused its discretion and violated R.R. 1:28-1 by continuing the hearing and concluding the cause at about 1 A.M. on the second day of the trial. The parties stipulated this to be the only issue when the Appellate Division entered an order on January 6, 1955 denying respondents' motion to dismiss the appeal. At that time appellant further stipulated that the record on appeal "is free of any claim of objection" by it to any court ruling.
Plaintiff sued in the district court to recover the cost of a water filter sold to defendant Merlin, Inc. The trial began on September 14, 1954 and continued through the entire court day. It was resumed on September 20, 1954, on which day the court sat from 10 A.M. until 1 A.M. the next morning except for occasional recesses and time out for meals.
The court had said that the case must be disposed of that day "even if we have to work for twenty-four hours around the clock," because the Administrative Director had requested that all cases more than six months old be disposed of by October 1. The action had been instituted March 24, 1954.
The court entered judgment for plaintiff against Merlin, Inc. for $665 and costs, and dismissed the action as to defendant Hackensack Water Company. The trial court's findings of fact recite that counsel for defendant Merlin, Inc. made no specific objection to the court's determination to sit until the case was concluded, irrespective of the hour, but "generally mentioned" the rule relating to hours of court, R.R. 1:28-1. The trial judge concluded that this rule was intended to fix only the normal hours for holding court; that it was within the court's discretion to sit at such other times and hours as it might consider necessary or desirable, and that there was no abuse of discretion inasmuch as two whole days had been given to the trial of the cause, and to utilize another two days would have affected the peremptory trial calendar. Plaintiff's motion to amend the findings of fact and conclusions of law was denied.
Appellant provides us with only two brief excerpts from the trial record, totalling 16 lines. The second excerpt relates to a request by Merlin's counsel for a continuance so as to permit him to offer the testimony of a Mr. Kapon, who apparently had been in court both days but had left sometime before 10 P.M. the second day. The court ruled that since Kapon was not under subpoena the case would be disposed of that day, but had he been subpoenaed the court would have continued the trial. We are not concerned with the Kapon aspect of the case, for appellant limits his appeal to the scope of R.R. 1:28-1 and argues no other point.
It is important to note that there is no dispute as to the correctness of the judgment on the merits. We have no record of anyone -- court, counsel or stenographer -- objecting to the length of the trial until after judgment had been rendered.
"The Supreme Court, the Superior Court, the county courts and the district courts shall sit from 10 A.M. to 1 P.M. and from 2 P.M. to 4 P.M., unless the Chief Justice shall order otherwise."
Appellant suggests that the rule is mandatory because of the use of the word "shall." It maintains that the failure and refusal of the trial court to abide by the rule or a reasonable extension thereof was an abuse of discretion and therefore error, requiring reversal and remand as a matter of law. It is argued that the continuation of the trial beyond 4 P.M. on September 20 deprived appellant of its right to a day in court; it imposed the strain of long and unreasonable hours upon counsel, with resultant impairment of and interference with the clear thinking to which a client is always entitled.
The provisions of R.R. 1:28-1 are not mandatory and inflexible. It was never intended that if a court sat beyond 4 P.M. the proceedings would thereby become invalidated regardless of the merits of the case and the absence of prejudice. That the rule was intended to fix only the normal hours for holding court is demonstrated by the memorandum of the Administrative Director dated October 4, 1954 and addressed to all judges, summarizing the matters ...