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Hodgson v. Applegate

Decided: October 26, 1959.

GEORGE M. HODGSON, PLAINTIFF-APPELLANT,
v.
LEROY APPLEGATE AND CLARA E. APPLEGATE, DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Proctor, J.

Proctor

[31 NJ Page 32] Plaintiff brought suit against defendants in the Burlington County Court to recover damages resulting from the defendants' alleged breach of an agreement to lease a gasoline station to him. He also sought recovery for defendants' alleged fraudulent non-disclosure of the terms of an existing lease on the premises. The jury returned a verdict in favor of the plaintiff in the sum of $8,500, and on April 9, 1958 judgment was entered thereon.

The defendants neither moved for a new trial within the time permitted by R.R. 4:61-2, nor took an appeal from the judgment. On May 13, 34 days after the entry of the judgment, the defendants, by newly retained (present) counsel, served a notice of motion to set aside the judgment "on the ground that the said judgment was obtained by fraud and that the defendant [ sic ] has since obtained newly-discovered evidence, which would probably alter the judgment, and on the further ground, as specified under R.R. 4:62-2: (a), (b), (c), and (f)." The notice of motion was filed on May 19. The hearing on the motion was adjourned from May 23 to June 18. On June 5, 57 days after the entry of the judgment, the defendants filed an amended notice of motion to vacate, which included as further reasons for setting aside the April 9 judgment: (1) that there was "basic error committed in the record" in that an improper measure of damages had been employed at the trial, and there was no evidence to support the plaintiff's claim of fraud; and (2) there were "basic error[s] in the Court's charge to the jury." The trial judge entered an order denying the motion and on June 24, 1958 the defendants appealed therefrom to the Appellate Division.

The Appellate Division unanimously agreed with the trial court that both the plaintiff's alleged fraud and the "newly-discovered" evidence should have been brought to the attention of the trial court prior to the verdict of the jury. Therefore, it found that there was no abuse of discretion by the trial court in refusing to set aside the judgment for these reasons. However, despite the defendants' failure to appeal from the original judgment, the majority held that "under the particular circumstances of this case, justice will best be served by considering defendants' present application as an appeal from the original judgment." [55 N.J. Super. 1] The majority found that there was reversible error in the conduct of the trial and in the trial court's charge to the jury, stating that there was "* * * such an extreme departure from the proper functioning of the

adjudicative process in the trial court as to compel the conclusion that the defendants will be the victims of a manifest injustice if the judgment is permitted to stand." Accordingly, the judgment was reversed and the cause remanded for a trial de novo on all issues. 55 N.J. Super. 1 (1959). The dissenting judge was of the opinion that the trial judge did not abuse his discretion in denying the motion under R.R. 4:62-2, and further that the appeal could not be considered as timely made from the original judgment. He therefore concluded that the Appellate Division was without jurisdiction to review the trial errors. The plaintiff appeals to this court. R.R. 1:2-1(b).

The plaintiff does not here challenge the majority's conclusion that there were trial errors prejudicial to the defendants. His argument is confined to the narrow procedural point. Thus, the sole issue before us is whether the defendants were foreclosed from appellate review of the original judgment because they failed to make a timely motion for a new trial, R.R. 4:61-2, or take a timely appeal from the judgment, R.R. 1:3-1(b), 1:27 B(d) and 2:3, and because they relied solely upon an appeal from the order denying their motion under R.R. 4:62-2 to vacate the judgment. We hold that they were not foreclosed.

R.R. 4:62-2 does not, except in an extraordinary case, provide an appropriate means for bringing trial error under attack. The rule provides:

"On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment, order or proceeding and which by due diligence could not have been discovered in time to move for a new trial under Rule 4:61-2; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released, or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the

judgment or order. The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) not more than 1 year after the judgment, order or proceeding was entered or taken. A motion under Rule 4:62-2 does not suspend the operation of any judgment, order or proceeding or affect the finality of a final judgment. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding; nor does it limit the court's power to set aside a judgment, order or proceeding for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, venire facias de novo, motions to award a repleader, to arrest a judgment, bills of review, bills in the nature of a bill of review and petitions for rehearing are superseded, and the procedure for obtaining a new trial or any relief from a judgment or order shall be by motion as prescribed in these rules or, where such relief is sought, by an independent action."

The rule is substantially the same as Federal Rule of Civil Procedure 60(b), as amended. It is therefore proper to draw on the experience of the federal courts with that rule to aid in the solution of comparable problems that arise under our rule.

R.R. 4:62-2 like Federal Rule 60(b) authorizes relief from a judgment on six separate and mutually exclusive grounds. Naglieri v. Trabattoni, 14 N.J. Super. 54 (App. Div. 1951) and see Klapprott v. United States, 335 U.S. 601, 69 S. Ct. 384, 93 L. Ed. 266 (1949). The rule expressly provides that the pendency of a motion under it does not suspend the operation or affect the finality of a final judgment. It therefore follows that a motion under the rule for relief from a final judgment does not of itself toll the running of the time for appeal from the judgment. See Markert v. Swift & Co., 173 F.2d 517, 519 (2 Cir. 1949). In this respect motions under R.R. 4:62-2 are unlike motions to alter or amend a judgment and motions for a new trial, R.R. 4:61, motions for judgment, R.R. 4:51-2, and motions to amend findings of fact by the trial court, R.R. 4:53-2. A timely motion under the latter rules must be made within 10 days after the verdict or judgment. R.R. 1:3-3(f) provides that such motions shall toll the running of the time for appeal. A motion for relief under R.R. 4:62-2 makes the six grounds for relief subject only to a reasonable

time limitation, and in addition restricts grounds (a), (b), and (c), to a maximum time period of one year from the entry of judgment. Because of the more extended time periods in R.R. 4:62-2, the tolling provision was not made applicable to ...


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