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Associated Metals and Minerals Corp. v. Dixon Chemical & Research Inc.

Decided: April 11, 1964.


Herbert, J.s.c.


On June 30, 1961 plaintiff obtained a judgment in the Chancery Division for $300,347.58 and costs against the defendant Dixon. Cross-appeals taken by plaintiff and Dixon have now been decided by an opinion filed February 19, 1964 in which the Appellate Division said in part (82 N.J. Super. 281, 316):

"In the exercise of our original jurisdiction we therefore mold the judgment in plaintiff's favor so that the amount of damages to be recovered by it is $500,000 * * *."

Following the opinion a mandate has issued and plaintiff now moves for entry of a judgment against Dixon for $500,000, interest and costs. Dixon, having an application pending before the Supreme Court for certification, opposes the motion and cites R.R. 1:10-6(b):

"Proceedings for certification shall not stay proceedings in the court below, except where a stay is ordered pursuant to these rules; but in no case shall the court below hear argument or make any determination in the cause, unless certification is denied."

Sun Dial Corp. v. Rideout , 31 N.J. Super. 375 (App. Div. 1954), indicates that the quoted rule does not bar a trial court from entering an appropriate judgment on a mandate of the Appellate Division even though an application for certification is pending. On the authority of that case I will sign a judgment. There is no merit in Dixon's suggestion that the Appellate Division actually has accomplished the revision of the judgment of June 30, 1961; in a technical sense that one is now the only judgment in the case. To embody the decision of the Appellate Division in a judgment another one will have to be signed and filed.

But what should the judgment provide about interest? The plaintiff contends that molding the judgment to increase the damages from $300,347.58 to $500,000 calls for the allowance of interest on the greater amount from June 30, 1961, the date of entry of the judgment being molded. A number of federal cases have been cited by plaintiff's counsel. However, only two of those involved decisions at the appellate level to increase dollar amounts determined by a trial court to have been due from a defendant to a plaintiff. In Coyle Lines v. U.S. , 195 F.2d 737 and 198 F.2d 195 (5 Cir. 1952) the judgment of the District Court in an admiralty case had awarded $10,830 to the plaintiff. That sum was only part of the damage suffered, and the amount of the award was based on a finding of mutual fault. On appeal it was held that the United States was chargeable with the entire fault and should pay the full amount of the plaintiff's damage. For present purposes the significant thing is that interest was allowed by the Court of Appeals on the entire award from the date of entry of the District Court's original judgment. Chemical Bank & Trust Co. v. Prudence-Bonds Corp. , 213 F.2d 443 (2 Cir. 1954), was one phase of a litigation in which the dollar amount of a judgment entered in the U.S. District Court on December 19, 1952 had been increased very substantially on appeal. The Court of Appeals held the amount originally awarded by the District Court should carry interest at 6% from the date of that court's decree, but on

the amount by which the appeal had increased the award of the District Court, interest at 6% was allowed only from October 23, 1953, that being the date on which a decree had been entered on the mandate. Although this decision was by a divided vote, with Judge Frank writing a forceful dissent, I am impressed by these comments of Judge Swan in the majority opinion:

"We did not direct entry of judgment as of December 19, 1952. Until the decree on mandate was entered, the amount of the additional surcharge and interest thereon was unliquidated, and no duty to pay the 6% judgment rate of interest thereon arose. The same is true as to additional costs.

The delay in the entry of the proper judgment was necessary in the sense that time for appellate reviews was required." (213 F.2d at p. 444)

In the present case liability (as distinguished from damages in dollars) was determined as of June 30, 1961 when the original judgment was signed, and that liability was not disturbed by appellate proceedings; but it was not until the opinion of the Appellate Division of February 19, 1964 that Dixon could definitely state its dollar responsibility to the plaintiff in any amount other than $300,347.58. I will apply the reasoning of Chemical Bank & Trust Co. v. Prudence-Bonds Corp., supra , and sign a judgment which, in addition to awarding damages of $500,000 to plaintiff against defendant Dixon, ...

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