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Clawans v. Schakat

Decided: April 1, 1958.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


[49 NJSuper Page 416] Plaintiff, an attorney and counsellor-at-law of this State, appeals pro se from (1) the designation by Assignment Judge Waugh of Judge Colie of the Superior Court, Law Division, Essex County, to preside over and hear the negligence action brought by her against defendants, after Judge Waugh had been advised that Judge Colie was prejudiced and should disqualify himself from sitting in her case; (2) Judge Colie's denial of her application that he disqualify himself in the trial of her action; (3) the judgment of dismissal, entered in defendants' favor by Judge Colie on their respective motions; and (4) his order denying her application to vacate the dismissal and grant a new trial. The judgment was entered after plaintiff had refused to permit her attorney to present evidence as to either liability or damages because of Judge Colie's refusal to disqualify himself. The first ground of appeal is not mentioned in plaintiff's brief and must be considered abandoned.

The appeal stems from a negligence action brought by plaintiff for personal injuries suffered in an intersectional accident between the automobile in which she was a passenger, owned by defendant Haight and driven by defendant Kerr, and an automobile driven by defendant Schakat.

Although the record does not show the proceedings prior to the appearance of the parties before Judge Colie for trial, we are informed that the case came on for trial on June 13, 1957, all counsel being present; that the case was marked "Ready" before Assignment Judge Waugh, and he thereupon assigned it for trial the same day before Judge Colie. Plaintiff's attorney requested Judge Colie to give his client time to prepare an affidavit to support her application that the judge disqualify himself because of prejudice. The request was granted and court recessed until noon. In the interim plaintiff appeared before Assignment Judge Waugh, all counsel being present, and personally asked for reassignment of the case to another judge on the basis of the allegations appearing in the affidavit about to be mentioned. Judge Waugh refused to order any change.

Plaintiff's affidavit was not quite ready when court reconvened at noon. Her attorney said he was embarrassed with his task and requested that he either be allowed to withdraw from the case or, in view of an offer of settlement made by defendants' attorneys and which he personally considered "fair," that the trial judge mark the case settled and permit him to try to get his client to accept the settlement. The judge denied both motions because the case had been assigned and was ready for trial. He said he would mark the case "settled" the minute he knew it was, adding, "I do not know that and you cannot give me that assurance," to which counsel replied, "I could not assure your Honor for one second that my client would not tell me, after I had settled, that she is not going to take it."

At this point counsel handed up plaintiff's affidavit to the trial judge, who marked it filed and stated he would proceed with the drawing of a jury. Counsel announced that he had requested his client to come into the courtroom,

but she had refused to be present when the jury was drawn because of the filing of the affidavit. The jury was thereupon drawn and the several attorneys made their opening statements. The court then declared a luncheon recess.

When court reconvened the trial judge announced that he had read the affidavit and would deny the motion for disqualification. Plaintiff's attorney then presented a supplementary affidavit on which the judge reserved decision until he had had an opportunity to examine it further. At this point the attorney for plaintiff stated that although he thought it was reasonably clear he could prove negligence by calling the defendants as witnesses, he found himself in a position where he could not prove damages. He said his client had told him that the last time she had appeared before the court she had been insulted and forcibly ejected from the courtroom, as a result of which she suffered nosebleed. She would not "jeopardize her health or life by coming in this courtroom; therefore, I cannot see why I should prove negligence when I cannot prove damages." Counsel further announced that his client refused to have her doctors appear, and he would therefore have to sit mute, being unable to call any witnesses. He repeated that he saw no point in taking the court's time in proving negligence when he could not prove damages. The trial judge thereupon announced that he had no other recourse than to grant whatever motions counsel had. Upon motions made by defense counsel for direction of verdict and entry of judgment, the court entered judgment in favor of all defendants. A subsequent motion to vacate the judgment was denied.

Plaintiff's affidavits charge Judge Colie with being so prejudiced against her personally that he would not be in a position to decide the instant case fairly and honestly. The reasons assigned stem from prior proceedings had by plaintiff before Judge Colie:

(1) In a case before Judge Colie in April 1955, plaintiff had failed to appear in court for the scheduled pretrial. When she appeared the next day the judge directed that she

get in touch with the other lawyers and come before him the following Friday. On that day he said he would not permit a pretrial until plaintiff paid each of defendants' attorneys $25, and he would draw an order to that effect. Plaintiff's affidavit alleged that he "wilfully and deliberately" failed to send her a copy of the order, so that it was not until she appeared before ...

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