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Bell v. Llewellyn Publications Co.

Decided: May 2, 1960.


Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.


Plaintiff appeals from a judgment of the Law Division dismissing his libel and slander action against defendants for lack of prosecution. Although the dismissal was without prejudice, it, in effect, amounted to a dismissal with prejudice since the one-year statute of limitations had already run.

Plaintiff, an attorney-at-law of the State of New Jersey, commenced this action on June 5, 1958, alleging that defendants had falsely and maliciously associated him with communism during his 1958 campaign for the Republican

nomination for mayor of East Orange. All defendants filed answers by July 7, 1958, and discovery proceedings then took place. Thereafter, at the pretrial on May 6, 1959, a settlement was attempted, the suggested terms being that all defendants would jointly pay plaintiff's counsel fee of $500 and that there would be a retraction. The settlement fell through, however, and plaintiff, in September 1959, moved for an order restoring the case to the active list, which motion was granted on September 23, 1959. By an order filed September 24, 1959, the Law Division set the pretrial for October 16, 1959. The pretrial order was filed on October 20, 1959, estimating a two-day trial which was peremptorily set for October 26, 1959. It also excluded Tabloid Lithographers, Inc. as a defendant. Plaintiff's motion for summary judgment, filed on October 20, 1959, was denied on October 22, 1959. For some reason which does not appear, the case was not tried on the October date, and was again set down for trial on November 17, 1959. However, on November 17, 1959, due to the illness of plaintiff's counsel, Mr. Giannone, the case was postponed until December 14, 1959. At the request of defendant William Smullen, who appeared pro se , the case was again postponed to December 15, 1959.

Up until December 6, 1959 Ernest N. Giannone, Esq. was plaintiff's sole attorney and conducted all the proceedings in the case. Moreover, it should again be noted that plaintiff himself was a practicing attorney-at-law of New Jersey. However, on or about December 6, 1959 plaintiff decided that he would like to have Harry Green, Esq., try his case. At that time Mr. Green stated that he would not be available on December 14 or 15 because he had other cases set down for trial that week and he had already arranged to go to California to visit his daughter and grandchildren on December 21, 1959, but that he would be ready to try the case on January 18, 1960. On December 7, 1959 Mr. Green wrote a letter to Judge Waugh, assignment judge of Essex County, setting out the above facts

and requesting that the trial be continued until after the first of the year. He also stated that although the pretrial order had estimated the time necessary for trial as two days, he calculated that it would take at least seven or eight days. Counsel for all defendants, except William Smullen, agreed to the requested adjournment. Mr. Green received no answer from Judge Waugh.

On December 15, 1959 plaintiff's counsel, Mr. Giannone, appeared in court to answer the daily calendar call, and was the only attorney involved in this action who appeared, all of the others apparently assuming that the requested adjournment had been granted. Nevertheless, the court marked the case "ready" and directed Mr. Giannone to remain in court until it was reached. At about 3:00 P.M. the court decided that the case would have to be carried over until the following day, and directed Mr. Giannone to notify other counsel.

On December 16, 1959 Mr. Giannone stated that he was not prepared to try the case because Mr. Green had been engaged to try it, and again requested an adjournment. In reply, Judge Waugh summarized the long-drawn-out history of this case and stated that,

"* * * [T]he Court had a letter from Mr. Green that merely informed the Court that Mr. Green would not be available until after the first of January. The Court was not consulted in advance as to whether or not this was agreeable to the Court.

I hold that counsel cannot bring in associate counsel after the case is a year and a half old unless the associate counsel is prepared to proceed on the day that the case is set." (Emphasis supplied.)

Nevertheless, after consulting with plaintiff, who was himself trying a case in the district court, Mr. Giannone informed the court, "He doesn't want me to try the case. He wants Mr. Green to try it." A short time later, plaintiff appeared before the court and, in his own behalf, stated, "I would like to say I ...

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