N.J. Constitutional Convention: Vol. 4, Page 651


Double Litigation

exist in the official reports, though it might be interpolated here, as Senator Hendrickson has already advised the Judiciary Committee, that out of 119 recent Chancery opinions, one-third were decided on questions of jurisdiction, the very difficulty here alluded to. Furthermore, they, of course, include none of the many cases which have not been officially reported at all. Finally, since the cases cited by the learned author, above, are all available in his book, we will only allude to certain of our more recent decisions.

Since it would make "confusion worse confounded" to attempt to set forth the complicated procedural steps required to be taken, first in one court, then in another, in these various cases, we will but cite them, that they may be verified by every interested person, and will content ourselves now, and conserve your patience, by setting forth the three main categories into which they fall, and alluding to certain instances of particular importance.

(1) The first class of cases of double litigation is that where the party bringing suit is found to have misjudged the character of his own suit, and to have brought it in the court which our Constitution says has not jurisdiction over that kind of proceeding. Thereupon, in many cases at least, his cause cannot be transferred to the right court, under the Transfer of Causes Act, but he must start his proceedings all over again in another court. Of this character are San Giacomo v Oraton Investment Co., 103 N. J. Eq. 273; Glaser v Columbia Laboratories, Inc., 11 N. J. Mis. 707, 112 N. J. L. 91; Market Holding Co. v North Camden Trust Co., 123 N. J. Eq. 328; Springdale. Corp. v Fidelity Union Trust Co., 121 N. J. L. 536; Weiss v Levine, 133 N. J. Eq. 441; Bauer v Trustees of First M. E. Church, 124 N. J. Eq. 247; Scott v Cholmondeley, 129 N. J. Eq. 152; Verdi v Price, 129 N. J. Eq. 355.

Nor is this loss of time and money to our citizens curable simply by obtaining capable lawyers. Not only the capability of the counsel involved in the above cases proves this, but the additional case of Richeimer v Fishbein, 107 N. J. Eq. 493, where the mistake as to jurisdiction was made by that extraordinarily able Chancery jurist, the late Vice-Chancellor Backes. Nor is the citizen saved this loss of time and money by the Transfer of Causes Act (R. S. 2:26-60). For, in the first place, the very fact that the cause has to be formally transferred, and that it takes two courts at least to complete justice, proves that the evil of double litigation exists. And here we need hardly allude to the many classes of cases to which our courts have held that the Transfer of Causes Act is unavailable at all. Indeed, the niceties of distinction which must be made in determining the exact extent of the differing jurisdictions of the courts of law and equity, in the single situation where fraud exists, are well set forth in the case of Pridmore v Steneck, 122 N. J. Eq. 35, a line so fine that even the most skilled practitioner might well cause his client

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