N.J. Constitutional Convention: Vol. 4, Page 390

Wednesday, July 9, 1947 (Afternoon session)

dual system is not going to be overcome, in my opinion, by an integrated court. We are still going to have, as Mr. Stryker said, questions of jurisdiction, but it may be molded as in the federal courts under the new rules, under rule 38 or 39. And of course, it's also greatly remedied by the pre-trial conferences in the federal courts. I really believe in keeping the two divisions at nisi prius entirely separate, with rules of court so molded as to facilitate the giving of justice in equity and in law, as previously.

In conclusion, may I suggest this, that the document which eventually is going to emanate from this Committee and from the Convention, be as simple as possible. Let it be simply a structure which would allow latitude to the Legislature and to the courts.

VICE-CHAIRMAN: Any questions of Mr. Minton?

MR. WINNE: I don't think you've distinguished about pre-trial conferences. No federal judge would decide whether the case belonged in equity or law in a pre-trial conference. He would insist that if you have any such motion that you make such a motion in open court and that a record be made and that the decision be officially received in court. You couldn't give a decision like that in a pre-trial conference.

MR. MINTON: Well, the way I understand it, Mr. Winne, you must ask for a trial by jury in a federal court; you have it as a matter of right, but must ask for it to receive it.

MR. WINNE: Yes. It could not be in a pre-trial conference. It would have to be in court.

MR. MINTON: That's true, but at least the court would mold that; the court even has - under rule 38, I believe - the discretionary right to insist upon trial by jury where it is not requested. Am I right in that?

MR. WINNE: I think you are correct. I'm very much interested in pre-trial conferences; I think we should have them in the state practice. But I didn't want the impression to go that this thing could be decided on a pre-trial conference basis.

VICE-CHAIRMAN: You differ with the wisdom of members of the same court writing opinions of diverse views. Do you want all the members of the court to write opinions along the same line, even though they have different views?

MR. MINTON: No, I don't mean that. If you take, for instance - well a few years ago we had our procedure on deficiency in foreclosure; it's a little out of my mind now, that was several years ago. But there might have been as many as five different methods of procedure on that without any rules. Do you see what I mean? I'm speaking about policies.

VICE-CHAIRMAN: I'm not talking about procedure; I'm talking about substance.

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