## Facts

- John J. Winberry filed a civil action in the New Jersey Superior Court seeking to expunge alleged libelous material about him from a grand jury report on file with the Middlesex County clerk.
- W. Burton Salisbury moved for summary judgment, arguing the complaint failed to state a cause of action.
- On May 25, 1949, the trial court granted summary judgment dismissing Winberry’s complaint.
- On June 11, 1949, the trial court entered an order (on its own motion) relieving Winberry from paying costs; the order was consented to in writing by both parties’ attorneys.
- On July 26, 1949, Winberry served a notice of appeal; Salisbury acknowledged receipt without waiving the contention that the appeal was late and moved to dismiss it as untimely.
- The Appellate Division dismissed the appeal under court rules imposing a 45-day deadline to appeal from final judgments.
- The New Jersey Supreme Court granted certification to determine the meaning of “subject to law” in the state constitution’s rule-making clause and the respective powers of the judiciary and Legislature over procedure.

## Issues

1. Whether the June 11 cost-relief order extended the time to appeal from the May 25 summary judgment so that the July 26 notice of appeal was timely under the court rules.
2. Whether the constitutional phrase “subject to law” permits the Legislature to override the Supreme Court’s rules governing practice and procedure.

## Decision

- The New Jersey Supreme Court affirmed the Appellate Division’s dismissal of the appeal as untimely, without costs.
- The court held the appeal had to be filed within 45 days of the May 25 final judgment under applicable court rules, and the July 26 notice of appeal was late.
- The June 11 order relieving Winberry from costs did not restart or extend the appeal period because it was entered for Winberry’s benefit and was consented to by counsel.
- Interpreting the 1947 New Jersey Constitution, the court held “subject to law” does not mean “subject to legislation” on procedural matters; it refers to substantive law.
- The court concluded that procedural rule-making is constitutionally committed to the Supreme Court and cannot be overridden by contrary procedural statutes.

## Legal Principles

- Under the New Jersey Constitution, the Supreme Court has constitutional authority to make rules governing court administration and, subject to substantive law, practice and procedure in all state courts.
- The phrase “subject to law” in the constitutional rule-making provision refers to substantive law, not legislative control over procedure.
- Rules governing the time to appeal are procedural; therefore, a court-promulgated appeal deadline controls over inconsistent statutory time limits.
- A later order concerning costs that is favorable to, and consented to by, the appellant does not extend the deadline to appeal from an earlier final judgment.

## Conclusion

The court enforced a 45-day procedural deadline for appeals and held that the judiciary’s constitutionally granted authority over practice and procedure prevails over conflicting procedural statutes, because “subject to law” limits court rules only by substantive law.


Winberry v. Salisbury, 74 A.2d 406 (N.J. 1950)