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Kerney v. Kerney

Decided: November 21, 1963.

JAMES KERNEY, JR. AND MARY KERNEY KUSER, PLAINTIFFS-RESPONDENTS,
v.
THOMAS L. KERNEY, JOHN E. KERNEY AND JAMES KERNEY FOUNDATION, A NEW JERSEY CHARITABLE CORPORATION, DEFENDANTS-APPELLANTS



On motion to suppress brief and dismiss appeal.

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

Goldmann

Plaintiffs-respondents move, on notice to defendants-appellants, for an order to suppress appellants' brief and to dismiss their appeal, for the reasons that (1) the brief is directed solely to those parts of the Chancery Division final judgment from which an appeal was not taken, and (2) the brief does not discuss that part of the judgment from which the appeal was taken.

The judgment in question was entered April 29, 1963. It contained nine numbered adjudications, of which only the first five need be mentioned. They read as follows:

"1. The present and only members of The James Kerney Foundation are Mary Kerney Kuser, Margaret Kerney McNeil, James Kerney, Jr., Thomas L. Kerney and John E. Kerney.

2. Any other persons purportedly elected or acting as members are not validly elected members of the Foundation and are hereby adjudged not to be members of the said Foundation.

3. The present and only trustees of The James Kerney Foundation are Mary Kerney Kuser, Margaret Kerney McNeil, James Kerney, Jr., Thomas L. Kerney and John E. Kerney.

4. Any other persons purportedly elected or acting as trustees are not validly elected trustees of the Foundation and are hereby adjudged not to be trustees of the said Foundation.

5. The amended Certificate of Incorporation and the amended By-Laws of The James Kerney Foundation adopted in 1948 are valid."

Defendants filed their notice of appeal on June 11, 1963. The appeal was a limited one, since the notice stated that defendants were appealing that part of the judgment set out in

paragraphs 1 and 2, just quoted, and which were reproduced in their notice.

The matter was submitted to the trial court on the pleadings, a stipulation of facts, and a supplemental stipulation. These are set out in the printed appendix, together with the transcript of the Chancery Division hearing held April 24, 1963, the oral opinion and decision of the trial judge rendered the same day, and the final judgment. The hearing transcript was filed by the court reporter on April 25, 1963 and refiled on June 14, 1963, after the filing of the notice of appeal. Defendants were therefore required to file their appendix ...


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