Clawans v. SchakatClawans v. Schakat
GOLDMANN, S.J.A.D.
Plaintiff, an attorney and counsellor-at-law of this State, appeals pro se from (1) the designation by Assignment Judge Waugh of Judge Colie of the Superior Court, Law Division, Essex County, to preside over and hеar the negligence action brought by her against defendants, after Judge Waugh had been advised that Judge Colie was prejudiced and should disqualify himself from sitting in her case; (2) Judge Colie‘s denial of her application that he disqualify himself in the trial of her action; (3) the judgment of dismissal, entered in defendants’ favor by Judge Colie on their respective motions; and (4) his order denying her application to vacate the dismissal and grant a new trial. The judgment was entered after plaintiff had refused to permit her attorney to presеnt evidence as to either liability or damages because of Judge Colie‘s refusal to disqualify himself. The first ground of appeal is not mentioned in plaintiff‘s brief and must be considered abandoned.
Although the record does not shоw the proceedings prior to the appearance of the parties before Judge Colie for trial, we are informed that the case came on for trial on June 13, 1957, all counsel being present; that the case was marked “Ready” befоre Assignment Judge Waugh, and he thereupon assigned it for trial the same day before Judge Colie. Plaintiff‘s attorney requested Judge Colie to give his client time to prepare an affidavit to support her application that the judge disqualify himself because of prejudice. The request was granted and court recessed until noon. In the interim plaintiff appeared before Assignment Judge Waugh, all counsel being present, and personally asked for reassignment of the case to another judge on the basis of the allegations appearing in the affidavit about to be mentioned. Judge Waugh refused to order any change.
Plaintiff‘s affidavit was not quite ready when court reconvened at noon. Her attorney said he was embarrassed with his task and requested that he eithеr be allowed to withdraw from the case or, in view of an offer of settlement made by defendants’ attorneys and which he personally considered “fair,” that the trial judge mark the case settled and permit him to try to get his client to accept the settlement. The judge denied both motions because the case had been assigned and was ready for trial. He said he would mark the case “settled” the minute he knew it was, adding, “I do not know that and you cannot give me that assurance,” to which counsel replied, “I could not assure your Honor for one second that my client would not tell me, after I had settled, that she is not going to take it.”
At this point counsel handed up plaintiff‘s affidavit to the trial judge, who marked it filed and stated he would proceed with the drawing of a jury. Counsel аnnounced that he had requested his client to come into the courtroom,
When court reconvened the trial judge announced that he had read the affidavit and would deny the motion for disqualification. Plaintiff‘s attorney then presented a supplementary affidavit on which the judge reserved decision until he had had an opportunity to examine it further. At this point the attorney for plaintiff stated that although he thought it was reasonably clear he could prove negligence by calling the defendants as witnesses, he found himself in a position where he could not prove damages. He said his client had told him that the last time she had appeared before the court she had been insulted and forcibly ejected from the courtroom, as a result of which she suffered nosebleed. She would not “jeopardize her health or life by coming in this courtroom; therefore, I cannot see why I should prove negligence when I cannot prove damages.” Counsel further announced that his client refused to have her doctors appear, and he would therefore have to sit mute, being unable to call any witnesses. He repeated that he saw no point in taking the court‘s time in proving negligence when he could not prove damages. The trial judge thereupon announced that he had no othеr recourse than to grant whatever motions counsel had. Upon motions made by defense counsel for direction of verdict and entry of judgment, the court entered judgment in favor of all defendants. A subsequent motion to vacate the judgment was denied.
Plaintiff‘s affidavits charge Judge Colie with being so prejudiced against her personally that he would not be in a position to decide the instant case fairly and honestly. The reasons assigned stem from prior proceedings had by plaintiff before Judge Colie:
(1) In a cаse before Judge Colie in April 1955, plaintiff had failed to appear in court for the scheduled pretrial. When she appeared the next day the judge directed that she
(2) During the original trial of Clawans v. Cohn (action on account stated, tried without a jury; judgment in defendant‘s favor appealed and affirmed by this court, Docket A-686-54, oрinion unreported; certification denied, 21 N.J. 337 (1956)), plaintiff charged that Judge Colie revealed “a most shocking attitude” toward her; he was “prejudiced and biased, so much so, that he actually became the advocate of the rights of the defendant * * * as well as volunteering the answers for the defendant on material points.” He allegedly abused and insulted her 54 times during the course of the trial and finally threatened to hold her in contempt. Judge Colie decided in defendant‘s favor, a result characterized аs a “fallacious decision” which cost her thousands of dollars. During the argument of one of the motions following the decision, plaintiff alleges that Judge Colie caused her to be forcibly removed from the courtroom, resulting in a nosebleed and a deniаl of her “right to be present during the crucial portion of this judicial proceeding.” All this demonstrated that the judge was “vicious” toward her.
Although Judge Colie did not actually pass upon the sufficiency of the supplementary affidavit as a basis for disqualification, that does not change the result we reach. The affidavit added little, if anything, to the main affidavit which had already outlined the charge of prejudice arising out of the judge‘s alleged conduct when he presided over the trial of Clawans v. Cohn.
Plaintiff does not rely upon the statute,
In Clawans v. Waugh, 10 N.J. Super. 605 (Cty. D. Ct. 1950), plaintiff sought a general disqualificatiоn of Judge Waugh in all future cases in which she might appear as attorney, on the basis of an affidavit which charged that he was so biased and prejudiced against her that no client represented by her would receive a fair trial. Although the case is aсtually not authority since, at the close of the argument, her attorney admitted that the matters contained in the affidavit did not contain a cause for recusation under the statute, the court undertook to write a memorandum opinion because thе subject matter had become a matter of general interest. The special tribunal which had been appointed as triers of the challenge, presided over by then County Judge and now Supreme Court Justice Francis, concluded that the challenge could not be sustained and the judge would not have been justified in recusing himself.
We need not here pass on the question whether the grounds of disqualification set out in
A judge is not required to withdraw from the hearing of a case upon a mere suggestion that he is disqualified to sit. Indeed, as was said by Chief Justice Gummere in State v. De Maio, 70 N.J.L. 220, 222 (E. & A. 1904), “it is improper for him to do so, unless the alleged cause of recusation is known by him to exist or is shown by proof to be true in fact.” Judge Colie‘s overruling of plaintiff‘s challenge was, by the clearest implication, a denial of
Some point is made of the fact that there was no authority on the pаrt of the court to enter judgment in favor of defendants, rather than a judgment of dismissal, because the applicable rule,
“For failure of the plaintiff * * * to comply with * * * any order of court, the court in its discretion may on motion of defendant dismiss an action or any claim against him. Such a dismissal shall be with prejudice unless otherwise specified in the order.”
However, the form of the judgment does not prejudice plaintiff, for a dismissal with prejudice would obviously be of the same effect, and it was clearly the intent of thе court to rule against plaintiff with prejudice. The only real question is whether a determination of that degree of finality
The fact that plaintiff‘s cause of action is now barred by the statute of limitations should not stay our affirmance of the judgment below. That judgment was clearly in the discretion of the trial judge, and he did not abuse discretion in the circumstances of the case before us. Plaintiff was not merely a litigant; she has been a member of the bar of this State for almost 35 years. It must be presumed she knew not only the rules governing practice and procedure in our courts, but the spirit which gives those rules their life and meaning.
Plaintiff could have fully protected her rights upon the denial of her motion for disqualification by continuing with the trial and, if dissatisfied with its outcome, made that denial a ground of appeal. Instead, she sat outside the door of the court and refused to accept and abide by its decision, even for purposes of concluding the orderly dispоsition of the matter in the trial court. Not only did she persist in refusing to come within the bar of the court so as to be available as a witness in her own behalf, but directed her counsel not to call her doctors to testify as to the nature and extent of her injuries аnd disabilities. Her obduracy in refusing to go on with the trial and make her proof of liability and damages, when all other parties and their counsel were in court ready to try the case, was thoroughly unwarranted conduct and exhibited so unreasonable an attitude on her part as clearly justified the action taken.
To permit plaintiff to prevail on this appeal would be to sanction the disruption by a litigant of the orderly processes of the administration of justice in our trial courts. The action taken by the trial judge was, in our opinion, the only appropriate one under the circumstances presented.
Affirmed.