Nitti v. Public Service Railway Co.

139 A. 62, 104 N.J.L. 67, 1927 N.J. LEXIS 273

• Court: Supreme Court of New Jersey
• Decided: October 17, 1927
• Status: Published

Opinions

The opinion of the court was delivered by

Parker, J.

The suit is for damages for personal injuries, but the question involved is one of res judicata. The trial judge directed a verdict for defendant on the ground of a former judgment between the same parties, based on the same cause of action, and this judicial action is the gravamen of the appeal.

Whatever difficulty inheres in the case arises out of informal, not to say irregular, proceedings in the former action. In 1910, when the plaintiff was only six years old, he lost a leg because of being run over by one of defendant’s cars in the public street. An action was begun in his name “by Vito Nitti, his next friend,” in the same court in which the judgment now under review was rendered; such action was noticed for trial, and later, after negotiations of settlement between the attorneys, a “consent” verdict of $500 was rendered under the supervision of the court. The minutes show that plaintiff testified as a witness. The $500 was paid to plaintiff’s then attorney of record, who executed the usual warrant for satisfaction of judgment, which was filed in due course. The plaintiff’s father, Vito Nitti, refused to accept the money, and on application of the attorney of record, it was paid into court, where, apparently, it still remains.

Matters rested in this shape until the plaintiff came of age, and then the present action was begun. The defendant pleaded former judgment; plaintiff replied ml tiel record; and the case being ripe for trial on this issue, it developed that no rule appointing the father as next friend in the former suit was on file, and that no formal judgment had been written up, nor was there any rule for judgment. The court made an ex parte order in the first suit for an entry of judgment nunc pro tunc, which was challenged by a motion and rule to show cause, and after taking testimony and hearing argument the rule to show cause was discharged. This was the posture of affairs at the trial in the present action.

Most of the argument in the present case is predicated upon alleged errors and irregularities in the former one. But if the court had jurisdiction of the parties and subject-matter, and there was a judgment in the former case cognizable by the trial court, that court was not concerned in the present case, nor are we concerned on this appeal, with errors and irregularities in the former suit. Stothoff v. Dunham, 19 N. J. L. 181; Reeves v. Townsend, 22 Id. 396; Palmer v. Freeholders, 77 Id. 143, and cases cited.

That there was jurisdiction is indubitable. The Circuit Court is a court of general civil jurisdiction at common law. Pamph. L. 1838, p. 61; Const., arl. 6, § 5, f 2. It had jurisdiction of defendant by process and appearance, and of plaintiff as a suitor. The lack of a petition and order appointing next friend, absent from the file, is consonant with a failure of the attorney to file them, but if they never existed, it is mere error in practice, and does not go to jurisdiction. 2 Arch. Pr. (6th ed.) 941, 942.

We proceed then, to the question whether there was a judgment cognizable by the trial court; and in examining this, we disregard the arguments pro and con touching the so-called “judgment nunc pro tunc," for the reason that we find there was an adequate judgment irrespective of that feature.

It is to be noted that both actions were in the same court; and this brings into play section 173 of the Practice act of 1903 (Comp. Stat., p. 4106), which provides that “in any action which has been finally determined, until the clerk shall enter the record of the judgment, the verdict or rule for judgment entered in the minutes shall be held and taken in the court in which the same is obtained to be the record of the judgment in such action and shall be received in evidence in said court as such judgment, as fully as if the record had been made up and signed.” Consequently, when the Hudson Circuit Court found on its own minutes the entry of a trial and verdict based on the earlier record, it was not only authorized, but required, to give it the force and effect of a judgment. The recognition of such minutes, especially in the same court, is nothing unusual, even in the absence of statute. State v. Warady, 78 N. J. L. 687, and cases on page 690. The clerk is required by statute to write up the judgment in a limited time (Comp. Stat., p. 2957, § 4) ; but this is merely directory. Weinberger v. Erie Railroad Co., 86 Id. 259; see Den v. Downam, 13 Id. 135. We have said in this court that the statute does not extend its operation outside the very court in which the judgment was rendered (Stein v. Goodenough, 69 Id. 635); and, hence, if we were now confronted with an appeal in the first case, the lack of a formal judgment would have some force; but our present inquiry is whether the Circuit erred in recognizing the record of the former case in that court as exhibiting a judgment, and proceeding accordingly. We conclude that there was no error in this regard.

It may be well to add a word touching the rendition of a verdict of $500 for the loss of a boy’s leg. This court is wholly in the dark as to the circumstances of the accident. If a clear case of negligence is made out, and no contributory negligence appears, such a sum may well be deemed very inadequate, though on this appeal the court would be powerless to correct it. But when such a verdict is taken by consent of reputable counsel, and under the supervision of an able and conscientious judge, who necessarily recognizes his duty to protect infancy, the only fair inference, particularly at this distance of time, is that the circumstances attending the accident were so devoid of any indication of defendant’s negligence that the attorney for plaintiff was judicious in assenting to a $500 verdict in lieu of risking the direction of a verdict against him, or a nonsuit. Such dispositions of infancy accident cases are common enough in practice.

The judgment will be affirmed.