On appeal from Monmouth County Court, Probate Division.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.
The primary issue raised in this appeal by defendant Miriam Pepper, executrix of the estate of Sidney Pepper, deceased,*fn1 is whether the trial judge erred in denying her application to vacate a judgment in the amount of $19,842.19 which had been entered on August 30, 1971, almost 5 1/2 years before her application was made.
The relevant facts are not in dispute. In September 1970 plaintiff Rosalie M. Arlinghaus, executrix of the last will and testament of Frank H. Arlinghaus, deceased, filed a verified complaint in the Monmouth County Court, Probate Division, seeking approval of her first intermediate accounting of the estate of her testator, who had died in 1964. The complaint alleged that Sidney Pepper was a lawyer licensed to practice in New York and had represented the estate of her decedent for about four years, from 1964 to 1968, when she discharged him. During that representation Pepper had prevailed upon her to pay to him counsel fees and disbursements in connection with legal services allegedly rendered to said estate.*fn2 During that four-year interval he failed to conclude either the federal or state tax proceedings. She further averred that during said four years certain events came to light which led to litigation referred to in the complaint as follows:
(a) She has instituted an action in the United States District Court for the Southern District of New York against the said Sidney Pepper, his wife, and others alleging that they defrauded the estate by inducing plaintiff to sell certain stock owned by the estate for a consideration far below the fair value thereof without disclosing their personal self-interest in the transaction.
(b) The plaintiff and others are also asserting a cross-claim for $75,000 against the said Sidney Pepper in an interpleader action presently pending in the United States District Court for the Southern District of New York, alleging that a certain assignment by virtue of which the said Sidney Pepper claims said sum was obtained through duress.
On October 9, 1970 a probate judge issued an order which, among other things, directed Pepper to file with the court that at least 20 days before the return of the order on December 4, 1970 an affidavit in form and substance sufficient to comply with R. 4:42-9(b) and R. 4:88-4, stating in detail the nature of the legal services he performed, the amount of time spent thereon, any particular novelty or difficulty and an itemization of disbursements; etc. In addition, the order directed Pepper to show cause on said return date why he should not be ordered to repay to the estate such amounts as the court might find to be excessive. The order specifically stated that "in default of the timely filing of the aforesaid affidavit[s] of legal services * * *" he show cause why he should not repay to the estate the sum of $19,842.19. This order was served pursuant to R. 4:4-4(e) ("long-arm rule").
Pepper's only response was a notarized letter addressed to the judge who had issued the order, which letter failed to submit the requested information and which declared:
This letter is accordingly to be deemed a nullity, as if not submitted by me, if its submission by me could constitute a submission by me to the jurisdiction of a Court of New Jersey.
On July 12, 1971 a probate judge rendered a letter opinion determining that the court had jurisdiction over the subject matter and also the person of Pepper, and ordered "that * * * Pepper * * * repay to the Estate of Frank H. Arlinghaus the sum paid [him] on the date indicated in the Order
to Show Cause for the alleged services performed and expenses incurred unless appropriate Affidavits are submitted [by him] within 15 days of this Judgment." A ...