Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
In determining the consequences to be visited upon a litigant because of the tardiness of his attorney in complying with our rules of practice and procedure, Mr. Justice Jacobs aptly stated in Martindell v. Martindell , 21 N.J. 341, 349 (1956), that "justice to the litigants is always the polestar." The circumstances of the present appeal are somewhat unusual.
This action to recover compensatory damages for bodily injuries suffered by Mrs. Mason and for incidental losses incurred by her husband was prosecuted in the Law Division, Monmouth County, against seven defendants where, in response to motions to dismiss, a final judgment in favor of all of the defendants was entered on February 24, 1955. The plaintiffs' notice of appeal therefrom was filed 49 days thereafter, on April 14, 1955. Among the respondents was the defendant Pines of Raritan Township, Inc., the present appellant. An appendix and the briefs of the respective respondents were prepared and filed.
In the absence of any motion to dismiss the appeal by any of the respondents, November 21, 1955 was designated as the date for argument of the appeal before us. At the very inception of the debate a member of this Part invited the attention of counsel to the filing date of the notice of appeal. There was no intimation of any objection to the continued prosecution of the appeal voiced by counsel, no request by counsel for any action by the court relative to the slight tardiness in the filing of the notice, but rather an apparent acquiescence by all counsel in the presentation of the appeal to us for consideration on its merits. Manifestly implicit in our determination to recognize the appeal is our conclusion that in the circumstances there was no evident prejudice, the neglect was of an excusable nature, and there was good and reasonable cause for us in the exercise of our discretion to enlarge the time limitation within the spirit of the authority conferred by R.R. 1:27 B.
The appeal was accordingly argued by counsel on the subjects specified in the briefs. Our decision, which affirmed
the judgment under review in its relation to the defendants Hanson VanWinkle Munning Co., Inc., Sweepstakes Realty Co., Inc., and Joseph Callahan, and reversed it as to the defendants Seber, Pines of Raritan Township, Inc., and Hanson VanWinkle Munning Athletic Association, Inc., is reported in 38 N.J. Super. 439 (App. Div. 1955).
A petition for certification was next presented to the Supreme Court on behalf of Pines and the Athletic Association, in support of which the first reason assigned by the petitioners was that "The Appellate Division did not have jurisdiction to decide the appeal." Significantly the petition was denied. 20 N.J. 534 (1956).
In preparation for the new trial of the plaintiffs' alleged causes of action against the three designated defendants, a supplemental pretrial conference was conducted, and counsel for the defendant Pines caused the following reservation to be inserted in the order:
"* * * Although the Court has been advised that petition for certification on the ground of the filing of the appeal out of time was denied, defendant Pines desires to reserve any right that it may have on that particular point, if any, for appeal purposes only." (Italics ours)
In obedience to our mandate a retrial of four days' duration ensued, terminating in a judgment in favor of the plaintiffs against the defendant Pines of Raritan Township, Inc., awarding to Estelle Klinsky Mason damages in the amount of $4,000 and to her husband, Raymond Mason, in the sum of $1,000, and a judgment of no cause for action in favor of the two other defendants. The application of the defendant Pines for a new trial was denied.
The attack upon the present judgment is solely confined to the contention that in consequence of the failure of the plaintiffs to file the notice of appeal within the prescribed time, the Appellate Division lacked jurisdiction to issue the previous mandate, hence the prior judgment of dismissal of the plaintiffs' cause of action ...