Webster v. Board of Chosen Freeholders

86 N.J.L. 256 | N.J. | 1914

The opinion of the court was delivered by

Parker, J.

This case was submitted on briefs without oral argument.

Counsel for appellant does not point out in his brief, nor on a careful examination of the printed book do we find in the entire case, any ruling or determination of the trial court on any point of law that was excepted to, or otherwise challenged at the time in such a way as to support an appeal.

The case was submitted to the trial court without a jury by consent. The evidence was put in partly by stipulation of facts between the parties with a note of objections to the relevancy and competency of some of these facts having been reserved, and partly by testimony taken de bene esse by consent apparently in the office of one or another of the counsel and .without the presence so far as appears of a Supreme Court commissioner or other officer. Certain objections to evidence are noted in the stenographic transcript of these depositions. These objections, as well as those entered on the stipulation, should normally have been laid before the trial judge for a ruling, and the ruling challenged by noting an exception thereto. Nothing of the sort appears. On the contrary it would seem that all this evidence in written form was handed up to the judge, the case argued at large if at all, and subsequently he filed a short memorandum of his decision. There is not only no challenge of any ruling on a matter of law, but no such ruling made or asked for except so far as is involved in the rendering of judgment for the plaintiffs below, which turned on questions of fad as well as of law.

The case is therefore eminently one for the application of the rule laid down in the Supreme Court by the late Chief Justice Beasley in Mills v. Mott, 59 N. J. L. 15, and followed by a number of decisions both in the Supreme Court and in this court, some of which follow: Wager v. Delran, 61 Id. 224, 227; Person v. Herring, 63 Id. 599; N. J. Rubber Co. v. Commercial, Union Insurance Co., 64 Id. 51; Leaver v. Kilmer, 71 Id. 291; Rhind v. Freedley, 74 Id. 138; Bogert v. McChesney, 77 Id. 797.

The barrenness of the case as regards any challenged ruling of law is brought into strong relief by a perusal of ihe eight grounds of appeal, seven of which consist of propositions of law or fad, or both, which are urged upon this court without any intimation that they were ruled on or even presented to the court below, still less ruled adversely and excepted to; and the eighth, which is merely (hat the court gave judgment for the plaintiff when it should have given it for the defendant.

The fact that the pleadings and hearing were under the Practice act of 1912 no way operates to change the result, either as to the necessity of challenging adverse rulings of law at the trial, or the appealability of a ruling on mixed questions of law and fact. “Bills of exceptions” as such are abolished; but the necessity of apprising the trial court that a ruling will he reviewed remains. Kargman v. Carlo, 85 N. J. L. 632. Section 154 of the Practice act of 1903, relating to trials without jury, is-now repealed; but in its place we have section 25 of the Practice act of 1912, providing in part that subject to rules, an appeal is in the nature of a rehearing upon any question of law involved in any ruling, order or judgment below; and rule 113 of the Supreme Court, which by section 29 is applicable to this court, and provides that “in trials without a jury * * * upon request of any party, the rulings of the court upon any point of law involved in the decision of judgment shall be stated in the findings.”

The only imaginable reason for stating such rulings in the findings is to make them the foundation of a review; and it is quite plain, therefore, that the fundamental rules of review on error, that there must be a ruling, that it must be adverse, and that the trial court must through the instrumentality of a formal challenge have an opportunity to reconsider and modify or change it, have not been nullified or emasculated by anything contained in the new Practice act or the rules made in pursuance thereof.

No legal error being presented for review, the judgment will be affirmed. Mills v. Mott, ubi supra.

For affirmance — The Chancellor, Ciiiee Justice, Garrison, SwAYZE, TRENCHARD, PARKER, BERGEN, MlNTURN, Ivalisch, Bogert, Vredenburgi-i, White, TIeppenheimer, JJ. 13.

For reversal — None.