N.J. Constitutional Convention: Vol. 4, Page 312

Tuesday, July 8, 1947 (Morning session)

apprehensive, too, that the rule-making power, if vested entirely in the court, might be subject to some abuse. As the Doctor knows, and Dean Sommer too, the rule-making power is now vested in the United States Supreme Court by statute, subject, however, to the ultimate adoption of the rules by Congress. In other words, the Supreme Court, as it now stands, may write and promulgate the rules which shall bind all of us in procedural matters, and the Congress can reject any rule. But the practice now followed is: the rules are promulgated, delivered by the Atttorney-General to Congress, and in the absence of any action by Congress within a certain time they become the law.

It is interesting to note, however, that the rule-making power was carried into the statute itself, because in the Judicial Code there is this reservation of the substantive rights, so that procedure as distinguished from substance should not be affected by a rule of court.

They were particularly careful in the rules to preserve the right to trial by jury, for example. There are other things. That brings us to the question that arose here this morning on the question of writs. The rules themselves have presented a difficulty recently in that we regarded a motion to do certain things was adequate. We have now determined - at least I have - and at the moment it is judicial authority, because I have written about four opinions on the subject. We find people who have had default judgments entered against them some years ago trying desperately to get into court to open and vacate the judgment, so that a trial might be had on the merits at this stage. We have determined that the traditional historic remedy available in the court of equity, both by rule or bill of review and writ of coram nobis, has been preserved. It becomes necessary, in order that justice may be done. We are functioning on what we consider a model system, but we find that resort must be had to the traditional equity jurisdiction of the court in order to preserve a right which the litigant had prior to the adoption of the rule.

Now, of course, those remedies are usually discretionary with the court, but we find ourselves back in equity of many years ago.

VICE-CHAIRMAN: Any further questions of Judge Smith?

MR. McGRATH: We thank Judge Smith for presenting this.

VICE-CHAIRMAN: Thank you very much, Judge. I'm sorry we didn't know you were coming or we would have had the proper introduction.

JUDGE SMITH: You caught me off guard.

VICE-CHAIRMAN: It is now a quarter of one. We will recess until two, at which time we will have some free time so that we can go into executive session.

(Recessed for luncheon at 1:00 P. M.)

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