For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J. Jacobs, J., concurs in result.
Appellant refused to sign a pretrial order because he believed it did not set forth fully the position of his clients. Upon his continued refusal to sign, he was adjudged "guilty of contempt," fined $25, and ordered committed to the county jail "until he shall pay * * * the sum so ordered and shall sign the Pretrial Order, unless the Court shall see fit sooner to discharge him." We certified his appeal before argument in the Appellate Division.
Appellant contended the court lacked jurisdiction of his clients and so asserted in the answer to the complaint. Motions to quash the service of process were twice denied, and the Appellate Division refused to allow an appeal. Deeming that issue to have been fully decided, the pretrial judge would not include it in the pretrial order as an issue for the trial. Appellant seemingly agreed that the earlier orders decided the issue of jurisdiction on the merits but thought the subject had to be noted nonetheless in the pretrial order to preserve his right to appellate review.
Appellant's fear was unwarranted. An appeal from a final judgment raises the validity of all interlocutory orders, and if the order refusing to quash the service disposed of that issue on its merits, as seems to be conceded, there was no obligation to renew the quarrel at trial. Nonetheless appellant was not captious in asking that the pretrial order reflect either the alleged defense or its prior disposition. R.R. 4:29-1(b) prescribes the content of the pretrial order and provides in item 8 for "A specification of the legal issues raised by the pleadings which are abandoned or otherwise disposed of."*fn1 The italicized phrase, added by amendment in 1964, apparently was unnoticed in the argument before the trial court.
Ultimately, the pretrial judge and appellant took positions which were tweedledum and tweedledee. To protect appellant from his fear of "waiver" of appellate review, the trial court spread appellant's position fully on the stenographic record of the conference but not in the pretrial order itself, while appellant, observing that he and the stenographer were perishable, wanted a notation in the pretrial order of the existence of that stenographic record. Believing this final stance was frivolous and obstructive, the trial court directed appellant to sign the pretrial order, and appellant continuing to refuse, there emerged the judgment assailed before us by appellant and several bar associations which rally around him.
As we have already said, appellant was correct in asking that the disposition of the separate defense be noted in the pretrial order. We think, too, that a trial court should not order counsel to sign a pretrial order he questions. The Manual of Pretrial Practice (Rev. 1959), prepared by the
Administrative Office of the Courts, which was not cited before the trial court, reads (p. 3):
"The pretrial order is, of course, a step in the cause with the full force of other orders of the court. However, it is also a stipulation of the parties. The parties are, therefore, entitled to have included therein any legal or factual contention deemed important to their claim or defense and covered by the pleadings. This right must be recognized by the pretrial judge and counsel should never be required to sign an order not considered by them adequate to cover their position." (Italics added)
R.R. 4:29-1(b) does provide that the pretrial order "shall be signed by the court and the attorneys for the parties," but the sense of that provision is correctly set forth in the quotation just made from the Manual. Nor is there need to compel counsel to sign. Other sanctions are available,*fn2 and if need be a binding pretrial order may be entered without the signature of counsel upon a recital of his refusal to sign. See Life Music, Inc. v. Edelstein, 309 F.2d 242 (2 Cir. 1962).
But although, as we have said, appellant correctly asked that the pretrial order reflect the disposition of his client's separate defense, he was wrong in resisting the court's direction to sign the order. There must be no defiance of a court, least of all by one of its officers. It is no excuse that the trial judge may be in error. Courts of appeal exist to hear such claims. One who is ...