On appeal from the Superior Court, Appellate Division.
For affirmance of District Court and reversal of Appellate Division -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- Chief Justice Vanderbilt. The opinion of the court was delivered by Weintraub, J. Vanderbilt, C.J. (dissenting).
Plaintiff sued for slander. The case was tried in the Passaic County District Court without a jury. At the close of plaintiff's case, motions for judgment of dismissal were granted.
Plaintiff appealed to the Appellate Division. The statement of proceedings (R.R. 1:6-3) was settled by the trial judge on June 1, 1955. Plaintiff's brief was due 30 days thereafter, R.R. 1:7-12(a) and 2:7-3, but plaintiff did not file it or seek an extension of time. On August 16 defendants moved to dismiss the appeal for failure to comply with the cited rule, and in response plaintiff filed her brief on August 24, five days before the argument of the motion. The Appellate Division dismissed the appeal, and on plaintiff's petition we granted certification to review the order of dismissal.
Upon the argument of the appeal we decided to hear the meritorious issues as well, to the end that if the order of the Appellate Division be reversed, there would be no further delay in this matter. Additional briefs were filed and argument had.
That plaintiff failed to comply with the rules is of course evident, and the reasons given are hardly moving. Where a legitimate basis for further time exists, the proper course is a seasonable application for an extension, and no explanation is advanced for plaintiff's failure to seek one.
The rules of court are designed to expedite litigation and are intended for the equal benefit of all parties. The failure of one side to comply precipitates motions which not only consume the time of the courts and delay justice to other
litigants, but as well waste the time of counsel which could be devoted with profit to other matters. There are situations in which relief from the prescribed timetable is warranted, and authority is provided for relaxation of the rule in appropriate cases. R.R. 1:27 A and 1:27 B. But the discretion is to be exercised by the courts and not by the unilateral decision of counsel for one of the parties. By reason of counsel's infraction, defendants were unfairly put to the burden of a motion to dismiss and the subsequent proceedings before us with reference to the motion, none of which has contributed to a solution of the issues which interest the clients.
Although we agree the reasons advanced by plaintiff for failure to comply with the rule do not attract sympathetic response and are mindful of the needless trouble to the other parties, yet we are reluctant to approve the dismissal of an appeal where the brief was in fact filed in response to the motion and before argument thereon. The effect of a dismissal is to impose too great a penalty upon a litigant who doubtless was personally blameless. There may be situations in which dismissal is the necessary sanction, but where other measures will fairly adjust such mesne controversies a dismissal should not be ordered. Hence we feel constrained to reverse the order of dismissal without costs in this court in favor of plaintiff, and indeed with costs in favor of defendant Goldyn, both in the Appellate Division and here, with respect to the motion to dismiss and the review of the order of dismissal.
This brings us to the merits. There was no stenographic record below and hence the validity of the judgments must be tested on the basis of the statement of proceedings settled by the trial judge.
In the statement we find plaintiff's case against defendant Hamot consisted of this: Plaintiff had known Mrs. Hamot for 25 years. They were co-employed at a handkerchief
factory, where on July 13, 1954 plaintiff, while working at a bench ten feet from Mrs. Hamot, heard her say to a Mrs. Kulik, both of whom had their backs to plaintiff:
"Where does Mary have any brains; she has her own man, and she had a baby with another man."
Plaintiff said she heard Mrs. Hamot add that she knows this from the co-defendant Goldyn, and that Mrs. Kulik said something which plaintiff did not catch.
Plaintiff did not produce Mrs. Kulik and hence we do not know from her to whom she understood the statement applied.
As to defendant Goldyn, plaintiff testified she had known defendant for 25 or 27 years; that she had not talked with defendant for 16 years except for one occasion about two years before trial and again in October 1953, when she "told Mrs. Goldyn not to talk about her" (about what, we are not informed) and that Mrs. Goldyn denied talking about her. Plaintiff said that on July 16, 1954, about 11:30 P.M., while on the porch of the house in which she ...