N.J. Constitutional Convention: Vol. 4, Page 128

Tuesday, July 1, 1947 (Morning session)

peals all over again. I've had those things come before me in a district where the judgment of the original hearing was seven years old, and that was a case of a certiorari.

JUDGE HARTSHORNE: I filed an opinion yesterday, sir, in which it was 15.

VICE-CHAIRMAN: Any further questions?

MR. PETERSON: Judge, these complaints, particularly in jurisdictional matters, of cases being kicked around from one court to another - aren't they due principally to the lack of preparation on the part of counsel?

JUDGE HARTSHORNE: No! No, sir! May I suggest that you look at the names of the counsel that appear in this series of cases which I have cited here? Consider that the mistake in this Richeimer case was made by Vice-Chancellor Backes as to the jurisdiction of equity.

MR. BROGAN: Was he reaching for jurisdiction?

JUDGE HARTSHORNE: I can't recall.

MR. PETERSON: I imagine it's now apropos for me to apologize to the list of distinguished guests.

COMMITTEE MEMBER: The barristers are not here.

MR. FRANK H. SOMMER: Judge, you keep referring to incidental legal points of law. What do you mean by incidental?

JUDGE HARTSHORNE: If, on the accounting case to which I referred before, common law -

MR. SOMMER: Suppose you take your accounting case and let's see how it works out.

JUDGE HARTSHORNE: All right, take your accounting case. Suppose there is a defense raised there of legal fraud. A court of equity would say, we are accustomed to dealing with equitable fraud, which is very different from legal fraud; therefore, you'll have to fight that defense out in the law court. Now, why shouldn't equity go right ahead and decide the whole thing?

MR. SOMMER: Is that the exercise of incidental power? If, as a matter of fact, you haven't worked out a basis for equity intervention, how do you work out this incidental idea?

JUDGE HARTSHORNE: You may not like my word, Dean. I am very happy to adopt any word you think fits. What I mean is, if the cause of action is one appropriate to the court in which it is filed.

MR. SOMMER: The basic question, I may ask, is whether the court had jurisdiction primarily?

JUDGE HARTSHORNE: The court may not have jurisdiction of some point raised in the answer, of some point raised in the replication, or what not, but if it has jurisdiction of the cause of

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