These are cross appeals. Both plaintiff and defendants appeal from a provisional determination by the trial judge, sitting in the Monmouth County Circuit Court, without a jury.
The procedure adopted in this case is without precedent. It is alleged to be under the Declaratory Judgment act. Assuming that this be so, it is clear to me that there are three fundamental reasons why the appeals should be dismissed.
(1) The Circuit Court had no jurisdiction, since it appears from the facts agreed upon that the matters involved in the litigation are of a nature which requires a separate determination in a court of law so far as the legal title is concerned, and in a court of equity, so far as the equitable rights of some of the litigants are concerned, under the will. Under our constitution the power and jurisdiction of our *Page 638 courts of law are to be exercised separately and distinctly from the power and jurisdiction exercised by our courts of equity.
By article 4, section 7, placitum 10 of the constitution, it is declared: "The legislature may vest in the Circuit Courts, or Common Pleas within the several counties of this state, chancery powers so far as relates to the foreclosure of mortgages and sale of mortgaged premises."
If there is anything in the Declaratory Judgment act which exceeds the grant of power and jurisdiction so conferred, then in that respect the offending provision of the statute must be treated as nullity.
(2) There is no formal judgment.
Under caption "Judgment" it reads: "Plaintiff is declared to be the owner of the bare legal title to an undivided three-fourths part of the lands and premises in question, subject to compulsory surrender thereof to the owners of the equitable estate in fee by appropriate procedure in equity."
This, surely, is not a final determination tantamount to a final judgment. It clearly contemplates further proceedings in a court of equity. Our constitution declares: "Final judgments in any Circuit Court may be brought by writ of error into the Supreme Court, or directly into the Court of Errors and Appeals."
Of course, this constitutional declaration excludes an appeal from a determination had in a court of law unless it was in all respects a final determination so as to be tantamount to a final judgment. Eames v. Stiles, 31 N.J.L. 490; Defiance FruitCo. v. Fox, 76 Id. 482; McAdams v. Mundy, 79 Id. 480;Knight v. Cape May Sand Co., 83 Id. 597.
Since the pronounceemnt of the trial judge is in the nature of an advisory opinion, and manifestly not determinative of the controversy between the litigants, it lacks the very essence of a final judgment, such as is contemplated by the plain language of the constitution, and as expressed and defined by the unequivocal decisions of this court in the cases above cited, and, therefore, no appeal lies. *Page 639
Moreover, the language in which the alleged judgment is couched expressly forbids any notion of its finality, but on the contrary, most significantly recognizes that the issues involved in the proceedings are not finally determined and are open for further consideration and judicial action by the Court of Chancery.
Furthermore, it is palpable to the legal mind that such aquasi determination could not be successfully pleaded in bar to an action where the issues between the same parties and their privies have been finally determined. It is familiar law that the plea of res judicata can only be properly pleaded where the issues between the parties have been finally determind and settled by a former adjudication.
In the instant case, that so-called "judgment," speaking for itself, plainly declares that no finality of the rights of the litigants can be reached until a court of equity has had an opportunity to settle and determine the equitable rights of the parties, under the issues raised by the pleadings.
In the case sub judice, according to the record and briefs of counsel, both parties are dissatisfied with the result reached by the trial judge, who sat as judge and jury.
While it is true, under the new Practice act of 1912, a notice of appeal has been substituted for the common law writ of error, nevertheless, the function of the latter was not altered thereby, but inheres in all respects in a notice of appeal.
The object sought for by a writ of error, at common law, was to reverse a judgment for errors in law apparent in the record, or exhibited by a bill of exceptions, and the same object is now attained under the new Practice act by a notice of appeal, with this difference — that no formal bill of exception is necessary, it being sufficient to note an objection made on the record to the ruling of the court.
A most extensive search among the reported cases, at common law, fails to reveal any case where both the successful and the unsuccessful party took writs of error to reverse a judgment.
(3)) Where both parties were dissatisfied with the result of the verdict, if the verdict was for the plaintiff, it was the practice, as exemplified by the reported cases in the English *Page 640 and American reports, for both the successful plaintiff and the unsuccessful defendant to apply to the trial court for a rule to show cause why the verdict should not be set aside and a new trial ordered.
Of course, such applications invariably rested upon diametrically opposite grounds. This is illustrated by a situation where the plaintiff's application is based upon the ground that the damages awarded are indequate, or upon some other substantial ground of law or fact; whereas the defendant's application may be based upon the ground that under the law there ought not to have been any verdict against him, or that the verdict was against the weight of the evidence, or that the damages awarded were excessive, c.
No such practice was countenanced where a writ of error was the medium of an appeal to a higher court. In such a situation, the court is only properly concerned with errors in law, apparent in the record, or committed by the trial judge in the course of the trial, and in the disposition of the cause, as exhibited by bills of exception, and upon which errors have been duly assigned by assignments of errors, and if no error be found, the appellate court affirms the judgment in toto, and if error be found, prejudicial to the party appealing, the appellate court reverses the judgment in toto.
In this respect the common law practice has not been altered by statute. In view of article 10, placitum 1 of the constitution which declares, "The common law and statute law now in force, but not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature," it becomes obvious that the common law in regard to appeals remains in full force and effect, except that bills of exceptions are abrogated and assignments of errors have been succeeded, under the new Practice act, by grounds of appeal, and except as altered in criminal cases.
Now, there can be no question that a successful plaintiff could, at common law, appeal by writ of error, from a judgment in his favor, on errors in the record, or for trial errors committed by the trial court, and such appeal would be followed by assignments of error, in which the defendant might *Page 641 join issue, or if he was desirous of a new trial, confess error in the record, upon which fact appearing, the judgment would be reversed.
A different method of procedure obtains in cases on appeal from a decree or order of the Court of Chancery, for in that class of cases, this court is clothed with the power to review and decide questions of law and of fact, and, hence, may affirm or modify or reverse a decree or order of the Court of Chancery, or in a proper case, direct the nature of the decree to be entered.
Of course, I am fully aware that I have been dealing with familiar legal principles governing our practice, under the old and new Practice acts, which principles should be known to all practitioners, but I have reason to believe that by the very circumstances of the general familiarity of these principles, and as is often the fate of familiar principles, they have been either overlooked or forgotten.
Keeping in view what has been said regarding the broad powers of this court in the review of, and dealing with, orders and decrees of the Court of Chancery, and the narrow and limited power of this court to be exercised by it in the review of a judgment at law, namely, to review solely errors in law, it is startling to be confronted with the declaration by a majority of this court that the judgment delivered by the trial judge was a final judgment of law, and though it be erroneous in part, this court could modify it, and affirm the judgment as modified.
There was power in the trial court, at common law, to enter a judgment on a verdict of a jury non obstante veredicto, which, as is well known to the bench and bar, is a verdict directed by the trial judge in favor of the plaintiff, without regard to the verdict obtained by the defendant. 1 Bouv. Dict. 760.
This judicial action was limited, in its exercise, to the trial court, in which the case was tried. If the case were tried in the Supreme Court Circuit, the judicial power referred to would be exercised on a rule to show cause why a verdict should not be set aside and the rule made absolute. See Hoyt v. *Page 642 Kearny Land Co., 7 N.J.L.J. 121; Hoyt v. Newbold,45 N.J.L. 219 (at p. 224), in which case the rule was made absolute and a verdict entered for the defendant, but no such practice existed where the case was on appeal by writ of error, to a higher tribunal.
It is true, that in Meyer v. Krauter, 56 N.J.L. 696, Mr. Justice Garrison, speaking for this court (at p. 698), in concluding his opinion, said: "The request that a verdict be directed for the defendant was a proper one, and judgment is ordered accordingly;" but this declaration cannot be accepted as authority that such practice ever existed in this state, for no such practice was pointed out, nor was ever such practice followed.
Moreover, the matter was never called to the attention of the court, and seems to have been passed over in silence.
It is proper to note here that the final result and vote, as recorded in the case, at the time of the deliverance of the opinion, is incorrect and was corrected in 57 N.J.L. 712.
The Court of Errors and Appeals is not vested, by the constitution, with the power to direct the entry of a verdict different from the verdict rendered by the jury, or by a court, sitting as a jury, or amend or alter a judgment different from what the record shows it to be.
The court has the power to remit the record to the trial judge to be dealt with according to law and fact.
Article 10, paragraph 1 of the constitution expressly declares: "The several courts of law and equity, except as herein otherwise provided, shall continue with the like power and jurisdiction as if this constitution had not been adopted." This declaration can only mean that this court shall continue to exercise the like power and jurisdiction as were exercised by it before the adoption of the constitution of 1844.
What this jurisdiction and power were at common law had to be sought for in the judicial history of the appellate courts of England (after which our appellate courts have been fashioned), and in the statutes and the decisions of our courts prior to the adoption of our constitution.
There is no warrant in law for this court to amend a judgment at law, contrary to the fact found by the verdict *Page 643 of a jury or by the trial judge, sitting as court and jury. There has been no such practice nor can there be any constitutional legislation to that end.
Under the constitution the only power this court could properly exercise, in the instant case, as has already been stated, was to either affirm or reverse the judgment in toto.
For the reasons stated, I vote to dismiss the appeal.
The Chancellor and Justice Katzenbach authorize me to state that they concur in the views expressed in this opinion.
For reversal — THE CHANCELLOR, PARKER, KALISCH, KATZENBACH, JJ. 4.
For modification — THE CHIEF JUSTICE, TRENCHARD, MINTURN, BLACK, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 12.