The opinion of the court was delivered by VANDERBILT, C.J.
This is an appeal from the judgment of the Appellate Division of the Superior Court unanimously affirming a judgment entered in the Law Division of that court in favor of the plaintiff for $1,737.32 for work done as an electrical subcontractor of the defendant. Inasmuch as the defendant's right to appeal hinges on the conduct of the trial judge rather than on the subject matter of the suit, it is unnecessary to state the issues or to summarize the evidence, or to deal with the other questions raised on this appeal.
The first point argued by the defendant is that the trial court in preventing counsel for the defendant from arguing fully to the jury the force and effect of the exhibits in the case denied the defendant the due process of law guaranteed by the Federal Constitution. This constitutional question, it should be noted, is the defendant's sole basis for appealing to this Court, Const., Article VI, section V, paragraph 1(a). It is therefore significant to observe that the question was not raised either at the trial, on the motion for a new trial or before the Appellate Division, but is presented here for the first time. Our appellate courts are not bound to consider questions not raised below, even though they be constitutional questions, State ex rel. Wm. Eckelmann, Inc., v. Jones, 4 N.J. 207, rehearing denied, 4 N.J. 374 (Sup. Ct. 1950); Mahnken v. Meltz, 97 N.J.L. 159 (E. & A. 1922); Borough of Park Ridge v. Reynolds, 74 N.J.L. 449 (E. & A. 1907). If we follow precedent and refuse to consider the constitutional question now tardily raised, it follows that the defendant's entire appeal must fail for want of any
"A statement of the questions involved, setting forth each question separately, in the briefest and most general terms, without names, dates, amounts or particulars of any kind. The entire statement should not ordinarily exceed 20 lines, must never exceed one page, and must be printed on a page by itself without any other matter appearing thereon. If the questions involved include any not presented to the court below, this fact shall be noted. The foregoing requirements are to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in or necessarily suggested by the statement of questions involved." (Italics supplied for purposes of this opinion.)
This is the only rule of court containing such strong language, but the necessity therefor is obvious. It is essential that the appellate courts in studying the briefs know at the outset the questions involved in order to determine what facts in the case are pertinent to the issues raised by counsel. It is especially important to know if any new issues are being raised for the first time in the reviewing court, for ordinarily only matters of jurisdiction or of public policy will be considered for the first time on appeal, State ex rel. Wm. Eckelmann, Inc., v. Jones, supra, at page 379; Anderson v. Modica, 4 N.J. 383, 390 (Sup. Ct. 1950). In some jurisdictions it has been found necessary to dismiss numerous appeals that did not conform to the Rule in order to enforce compliance with it, but fortunately we have not found it necessary so to do.
While it is well recognized that the parties have the right to have their counsel sum up the case to the jury, it is also well established that the trial court has the authority as well as the duty to keep the arguments of counsel as well as their conduct and actions within the limits of courtroom decorum. Counsel for the defendant testified at the supplemental hearing and insisted at the oral argument before us that all that he was doing at the time the trial court rebuked him with the admonition "Stop kissing the jury," was to explain certain exhibits to the jury and that in doing so both
In the absence of a timely objection or of a motion for a mistrial, or of a request for instructions, there is no legal error before us on which to ground an appeal, however we may feel about the propriety of the court's direction to counsel, Rule 3:46; Raab v. American Casualty Company, 4 N.J. 303 (Sup. Ct. 1950); Anderson v. Modica, supra, 4 N.J. 383. The rule is not technical, but on the contrary it is essential to an orderly trial. The court or the adverse
It remains for us to consider the situation arising from the fact that some of the remarks of the trial court complained of here do not appear in the official transcript. They make their appearance only in the supplemental hearing held nearly five months after the trial and then, as we have seen and as might well have been expected, through the mere lapse of time there was a general disagreement between the testimony of the president of the defendant corporation and its counsel and the evidence of the president of the plaintiff corporation and its counsel. Quite naturally neither the sergeant-at-arms nor the certified shorthand reporter had any recollection of the questioned events. But the statement of the certified shorthand reporter that she had been told by the judge not to make a record of such remarks demands our attention, for none of us in this Court have ever before known of a trial judge censoring the record of a case tried by him. It is, of course, highly improper for a judge to give instructions to the court reporter not to take any of his remarks and it is equally improper for the reporter to fail to take shorthand notes and to reproduce in the transcript everything the court said during the course of the trial. The trial judge is necessarily allowed wide latitude in the conduct of a trial consistent with established judicial practice, but this discretion does not extend to interfering at any point with the taking of a complete and accurate record of the proceedings.
For want of a constitutional question properly raised the appeal is dismissed but without costs.
Opposed — None.