Mayor of Gloucester City v. Greene

45 N.J. Eq. 747 | N.J. Super. Ct. App. Div. | 1889

The Vice-Ordinary.

The orphans court of Camden county, on the 24th day of February, 1888, made a decree declaring that the estate of Albert J. Greene, deceased, was insolvent, and directing his executrix to proceed to make sale of his lands. No appeal was taken from that decree, but on the 4th day of May following, the appellant, as a creditor of the testator, presented a petition to the ■orphans court, alleging that the decree had been prematurely and improvidently made, and praying that it be vacated. On the presentation of the petition, an order was made requiring the respondent to show cause why the decree should not be set aside, also staying all proceedings under the decree, and giving the parties leave to take testimony, to be used on the argument of the order to show cause. On the 30th day of June, 1888, the court, after hearing the questions raised by the order to show-cause discussed, made au order denying the prayer of the petition and discharging the order to show cause. From that order an appeal has been taken, and that is the order now before the court for review.

As is apparent, the object of the appellant in taking this appeal was to put in contest the validity of the decree made February 24th, 1888. A decree simply reversing the order appealed from,, and leaving the decree of February 24th, 1888, in full force, would accomplish nothing. It would be a vain and nugatory act. As already remarked, no appeal was taken from the decree of February 24th, 1888. No appeal from it has ever been demanded. That being so, even iF'that decree was still in full force, I think the power of this court to look into it, in the in■direct way proposed, for the purpose of deciding whether it was valid or not, would be subject to the very gravest doubt. The ■constitution gives any person aggrieved by any order, sentence or decree of the orphans court a right of appeal to the prerogative court, but this right, to be effectual in'securing a review, must be exercised within such limit, as to time, as the legislature has prescribed. The time prescribed by the legislature for demanding an appeal from a decree like the one under consideration is three months. The statute, in substance, declares, that any person aggrieved by an order or decree of the orphans court may appeal from the same to the prerogative court, provided that the appeal, if from any other order or decree than an order ■or decree respecting the probate of a will, or the right of administration, or the fairness of an inventory, shall be demanded within three months from the making of such order or decree. Rev. p. 791 § 176. The right of appeal is conditional upon its being demanded within the time limited by the statute. Hillyer v. Schenck, 2 McCart. 398, 401. The rule is firmly settled, that a person believing himself to be aggrieved by a decree of the orphans court, must, in order to place himself in a position where he will have a right to have such decree reviewed bn appeal, make a written demand of appeal to the court pronouncing the decree within the period fixed by the statute, and that if he fails to do so, his right of appeal will be lost forever. Hillyer v. Schenck, supra; Claypool v. Norcross, 9 Stew. Eq. 524; S. C. on appeal, 10 Stew. Eq. 261. This being the law, I think it would require the exercise of a very dangerous degree of ingenuity to find a way by which this court could, notwithstanding the fact that no appeal has been demanded within the time limited by statute, take jurisdiction of the question whether the decree of February 24th, 1888, was valid or not, and pronounce a judgment either affirming or reversing it.

But it is not necessary to decide that question in this case. For another reason it is entirely plain that this appeal must be dismissed. On the same day that the order was made, which is brought up by this appeal (June 30th, 1888), the orphans court of Camden county revoked the letters testamentary theretofore issued to the respondent, because she refused to give the bond which the statute requires an executor or administrator to give on being directed to make sale of land, and the court also, on the same day, made an order directing that letters of administration, with the will of the testator annexed, be issued to Prank A. Fowler, and also made a decree directing Fowler to' proceed to make sale of the testator’s lands for the payment of his debts. Fowler at once gave the bond required by statute. The decree directing Fowler to make sale of the testator’s lands rendered the previous decree of February 24th, 1888, wholly inoperative. It became at once functus officio, and has since been without life or force. If the testator’s lands have been sold, the sale must have been made by Fowler by force of the last decree. If they are hereafter to be sold, Fowler alone can sell them. The decree directing Fowler to make sale was sent up as part of the record in this case, but is not before the court for review. No appeal has been demanded from it — Fowler has never been called upon to defend its validity, and it is entitled, therefore, to be regarded in this proceeding as in all respects valid and legal. In' this condition of affairs, it is obvious, that a reversal of both the decree of February 24th, 1888, and of the order refusing to vacate that decree, would be an entirely nugatory act. An act of that kind no judicial tribunal can be required to do. Chancellor Kent, while chief-justice of the supreme court of New York, and when sitting as chief-justice in the court of errors of that State, said: “ To reverse an order, which has long since expired, is absurd. It would be doing an idle act,.which does not comport with the gravity of a court of justice. It is one of the maxims of the common law, and which is a dictate of common sense, that the law will not attempt to do an act which would be vain, or to enforce an act which would be frivolous. Lex nil frustra facit.” Trustees of Huntington v. Nicoll, 3 Johns. 566, 598. This principle was recognized by Chief-Justice Beasley in the opinion which he delivered in Black v. Delaware & Raritan Canal Co., 9 C. E. Gr. 455, 489. He said, in substance, that it would be unbecoming in a judicial tribunal to do an act which must prove to be empty and profitless. And the court of errors and appeals applied and enforced this principle, in Camden and Atlantic R. R. Co. v. Elkins, 10 Stew. Eq. 273, just as I think it must be applied and enforced in this ease. Courts exercising appellate jurisdiction sit to administer justice in matters of substantial interest, not to gratify the passions of •the litigants, nor to foster a spirit of vexatious litigation.

The appeal must be dismissed, with costs.