Opinion
Submitted October 26, 1945 —
Decided January 3, 1946.
On appeal from the Supreme Court, in which court the following opinion per curiam was filed:
"The cases arose under R.S. 2:32-203 which provides, among other things, that when an appeal is taken from a judgment of the District Court and the testimony is taken by a stenographer ( R.S. 2:32-92) the transcript of proceedings and testimony shall be certified by the District Court Judge as the state of the case for the appeal within thirty days after filing of notice of appeal and shall be filed with the clerk of the Supreme Court on or before the opening day of the next term. In the present cases there was a stenographer, a transcript was duly ordered by the appellant and, according to the affidavits, paid for in advance, but the stenographer failed to get the transcript written up in time, or at all events it was not certified by the judge within the time limited by statute, and indeed was not ready when the term opened, so that we have on the one hand an application to dismiss the appeal, and on the other an application to extend the time for completing and filing the state of the case and postpone the hearing of the matter until next term.
"The case is one of considerable hardship if the appellant's version of the various happenings is correct, and this there seems to be no reason to doubt. But what confronts the court is not one of its own rules which may be relaxed or modified in a special case, but the positive command of the statute which is peremptory in its terms and contains no provision whatever for relaxation. It is not the first time that this court has been called upon to deal with a similar situation; and we may repeat here a remark contained in the opinion of Berstecher v. Caruso, 89 N.J.L. 426 (at p. 428), where it was noted that `the case is, apparently, one of hardship on account of the application of statutes which we have no power to relax.' It is there pointed out that `these are matters to be dealt with by the legislature, either by direct enactment or by authorizing this court to promulgate rules for District Court appeals which will not have the rigidity of statutes.' That decision was in 1916; and as late as 1934 a similar situation arose in the case of Matyas v. Yurko, 12 N.J. Mis. R. 715, and on that occasion also this court cited the Berstecher case and held that it was obliged to dismiss the appeal. See, also, Galligan v. Gonzales, 97 N.J.L. 327. It is hardly necessary to say that where there is a specific statute controlling the practice, courts are bound to endorse it; and as a result the present appeal must be dismissed."
For the appellant, Jerome Alper Alper.
For the respondents, J. Edward Bennett.
The judgment under review will be affirmed, for the reasons expressed in the opinion per curiam filed in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, CASE, BODINE, DONGES, HEHER, PERSKIE, OLIPHANT, WELLS, RAFFERTY, DILL, FREUND, JJ. 12.
For reversal — McGEEHAN, J. 1.