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Emmons v. Stillwell

Decided: November 23, 1959.

GEORGE EMMONS, PLAINTIFF,
v.
ELIPHALET B. STILLWELL, ADMINISTRATOR OF THE ESTATE OF ALDEN D. APPELGET, DECEASED, AND THE COUNTY OF OCEAN, DEFENDANTS. ANNIE BELL HILL, PLAINTIFF, V. ELIPHALET B. STILLWELL, ADMINISTRATOR OF THE ESTATE OF ALDEN D. APPELGET, DECEASED, OCEAN COUNTY (NEW JERSEY) AND GEORGE H. EMMONS, DEFENDANTS



Civil action. On motion.

Larrabee, J.c.c. (temporarily assigned).

Larrabee

[58 NJSuper Page 308] The suit resulted from an auto accident. The jury returned a verdict in favor of plaintiff Annie Bell Hill and Eliphalet B. Stillwell, administrator of the estate of Alden D. Appelget,

deceased, and against George H. Emmons on October 1, 1959. Judgment was entered on October 6, 1959.

On October 13, 1959 attorney for defendant filed a notice of motion for a new trial. The notice was dated October 6, 1959 and was mailed to the adversaries on that date. The notice was returnable November 13, 1959.

On October 26, 1959 the attorney for defendant Emmons sent a letter to the trial judge, with copies to the court clerk and to adversary counsel, stating that he was unable to obtain from the court reporter a transcript of the testimony since the reporter had sustained a heart attack. The letter continued:

"In the meantime, and in anticipation of Mr. Donegan's absence, I will, of course, request a continuance of the matter, and will request a date after I have ascertained more accurately when it would appear the transcript will be available."

On October 30, 1959 counsel for plaintiffs wrote the court, with copies to the clerk and defendant's counsel, advising that they would appear on the return date and asking that no continuance of the original motion be granted until plaintiffs' counsel could be heard. Meanwhile, counsel for the plaintiffs on November 5, 1959 and November 6, 1959 filed motions to dismiss the original motion.

Both matters came on for hearing on November 13, 1959 and the court proceeded to hear the motion of plaintiffs' counsel first. The contentions of plaintiffs' counsel were that the motion for a new trial should be dismissed because there never had been entered an order extending the time as permitted by R.R. 4:61-2.

The rule provides that the motion must be served not later than ten days after the entry of the verdict of the jury. The verdict of the jury was entered October 1, 1959 and the notices of motion were mailed October 6, 1959, well within time.

However, the rule further provides that "The motion shall be noticed for hearing and shall be argued no later than

the second regular motion day following the service thereof, unless the court for good cause shown shall order the hearing fixed for ...


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