Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
On September 6, 1961 Anthony M. Zoppi, an attorney at law of New Jersey, was summarily convicted of a contempt in facie curiae and was fined $25 by the Municipal Court of the Town of Nutley, because he allegedly continued to argue against the court's announced grant of a two-weeks' adjournment of a case involving his client after the court twice warned him that further argument would result in his being held guilty of contempt.
In his appeal to this court pursuant to N.J.S. 2A:10-3, Mr. Zoppi contends (1) that he was not given an opportunity to be heard as to the alleged contempt before the adjudication of his guilt thereof and imposition of the fine; and (2) that his conduct was not such as to constitute a contempt in the face of the court. Unfortunately, there was no stenographic transcript of the proceedings, even though Mr. Zoppi had a stenographer in court, who was not sworn because of the adjournment.
The appellant has improperly included as part of the appendix his own uncertified "Statement of Record," setting forth his version of the facts, and an ex parte affidavit in partial support thereof made by Neil R. Rice, the stenographer engaged by Mr. Zoppi to take stenographically the trial involving Mr. Zoppi's client. Where, as here, there was
no stenographic transcript, the appellant may submit a statement in lieu thereof to the trial court for approval. R.R. 1:6-3; R.R. 2:6. Appellant claims that he submitted the statement to the trial judge and the latter ignored it. However, appellant did not object to the magistrate's certified statement of the facts which resulted in the adjudication of contempt, and made no application to the magistrate or to this court for any modification or amplification of the record. See R.R. 1:6-6. Therefore, we are obliged under the rules to disregard the contents of the appellant's "Statement of Record" and Mr. Rice's affidavit.
We also find objectionable as part of the appendix a so-called "Complaint Report" made by the Deputy Court Clerk of the Municipal Court, purporting to summarize the facts which gave rise to the conviction for contempt. While the court clerk may and should make suitable entries as to the nature and disposition of matters before the court, his unsworn summary of the evidence cannot be accepted in lieu of a stenographic transcript or the trial judge's own certified statement. Accordingly, we have given no consideration to the clerk's report of the happening.
R.R. 8:8-1, relating to contempt proceedings in municipal courts, provides:
"A criminal contempt may be punished summarily if the magistrate certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court, or in all instances of failure to obey a summons or subpoena of the court if properly served. The order of contempt shall recite the facts and shall be signed by the magistrate and entered of record after the defendant is given an opportunity to be heard." (Emphasis added)
In this instance, the order of contempt did recite the facts, was signed by the magistrate and was entered of record. As to defendant's opportunity to be heard, the magistrate's certification shows, inter alia , the following:
"* * * the court reminded said Attorney that if he continued to argue with the court he would be held in contempt of court; the
court after sounding the gavel and warning said Attorney on two occasions and said Attorney ignoring the court's warnings of being held in contempt, the court adjudged said Attorney in ...