Hierspiel v. Gormley

Supreme Court of New Jersey

Hierspiel v. Gormley

109 A. 349, 94 N.J.L. 253, 9 Gummere 253, 1920 N.J. LEXIS 180

CourtSupreme Court of New Jersey

DecidedMarch 1, 1920

StatusPublished

Cited by1 cases

This text of 109 A. 349 (Hierspiel v. Gormley) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hierspiel v. Gormley, 109 A. 349, 94 N.J.L. 253, 9 Gummere 253, 1920 N.J. LEXIS 180 (N.J. 1920).

Pincite

Opinion

Per Cur tam.

This action was one for damages under the Death act arising out of a, collision between the defendant’s automobile and [254]*254the plaintiff’s intestate. The jury found .a verdict for plaintiff and defendant procured a rule to show cause from the trial court, in which a single question was ■ reserved, namely, the pertinency of the ordinance of Jersey City concerning rollerskating. The, rule to show cause was apparently discharged, although the record does not disclose it, yet it is to be implied ■from the entry of final judgment on the-postea.

The reserved question was not argued in -this court. The case was here submitted on-briefs by consent, and the brief filed for the defendant-appellant was the one he submitted to tire Supreme Court on his rule to show cause in that tribunal, which, of course, does not argue the reserved question; and equally, of course, the questions considered in the court below on the rule to show cause are not'arguable here.

Rule No. 35 of this court, -as amended, 1914, provides that if no brief be filed by the appellant the appeal shall be considered to.be abandoned. As no brief of-argument was filed in this court on the only question reserved and cognizable here, this appeal must be considered to be abandoned. It is as though counsel handed to this court the state of the case, saying that there was error in it and asking the court to find it and reverse the judgment. This is contrary to immemorial and settled practice; It is always the- duty of counsel to point out the alleged errors in the record, and, by arguing them, aid the court in reaching a right conclusion. Besides, the adversary party is entitled to know what is to be relied upon on the appeal and to have a copy of the brief of argument so that he may reply to it.

Let the judgment under review be affirmed, with coets.

For affirmance—The Chancellor., Chiee Justice, Swayze, Tkenchard, Parker, Bergen, Minturn, Kalisoh, Black, White, Hepeeniieimer, Williams, Taylor, Gardner, Ackerson, JJ. 15.

For reversal—None.

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Per Cur tam.

This action was one for damages under the Death act arising out of a, collision between the defendant’s automobile and [254]*254the plaintiff’s intestate. The jury found .a verdict for plaintiff and defendant procured a rule to show cause from the trial court, in which a single question was ■ reserved, namely, the pertinency of the ordinance of Jersey City concerning rollerskating. The, rule to show cause was apparently discharged, although the record does not disclose it, yet it is to be implied ■from the entry of final judgment on the-postea.

The reserved question was not argued in -this court. The case was here submitted on-briefs by consent, and the brief filed for the defendant-appellant was the one he submitted to tire Supreme Court on his rule to show cause in that tribunal, which, of course, does not argue the reserved question; and equally, of course, the questions considered in the court below on the rule to show cause are not'arguable here.

Rule No. 35 of this court, -as amended, 1914, provides that if no brief be filed by the appellant the appeal shall be considered to.be abandoned. As no brief of-argument was filed in this court on the only question reserved and cognizable here, this appeal must be considered to be abandoned. It is as though counsel handed to this court the state of the case, saying that there was error in it and asking the court to find it and reverse the judgment. This is contrary to immemorial and settled practice; It is always the- duty of counsel to point out the alleged errors in the record, and, by arguing them, aid the court in reaching a right conclusion. Besides, the adversary party is entitled to know what is to be relied upon on the appeal and to have a copy of the brief of argument so that he may reply to it.

Let the judgment under review be affirmed, with coets.

For affirmance—The Chancellor., Chiee Justice, Swayze, Tkenchard, Parker, Bergen, Minturn, Kalisoh, Black, White, Hepeeniieimer, Williams, Taylor, Gardner, Ackerson, JJ. 15.

For reversal—None.

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Bluebook (online)

109 A. 349, 94 N.J.L. 253, 9 Gummere 253, 1920 N.J. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hierspiel-v-gormley-nj-1920.

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