For the Record(er)

Where oh where can the records be?

Reader Chris from New Jersey was busily researching a family from the Garden State when up popped a question.

A member of this family had been killed in an automobile accident in New Jersey in 1934; the driver and owner of the other vehicle involved in the accident — a truck — were from North Carolina. The widow had been granted letters of administration ad prosequendum, and a newspaper reported that there was a hearing before the Recorder of the town where the accident occurred.

So it sure looked like there were court actions resulting from the accident — but where would the records be?

WriterChris had tried the County Clerk’s Office, the Superior Court Clerk, the State Archives, and the Records Management Center in Trenton, but to no avail: “No one seems to know anything about any records from 1934.”

Lots of possibilities, but let’s define terms first.

There’s that whole business of letters of administration ad prosequendum, to begin with. A lovely term that you won’t find in either Black’s Law Dictionary or Bouvier’s Law Dictionary. But you will find it explained pretty well on websites of various New Jersey counties.

Mercer County’s website, for example, explains that “If a suit for wrongful death is to be brought on behalf of an estate, an Administrator Ad Prosequendum must be named. … The Letters give the authority to the Administrator Ad Prosequendum to bring the action and institute a proceeding or make a claim and the civil litigation may be pursued.”1

So the widow was given the legal right to bring a lawsuit on behalf of the estate of her late husband for his wrongful death.

And then there’s the Recorder. What the heck kind of official is that? It’s not a position that exists today in New Jersey communities — so what did it mean in 1934? On the face of it, you might think — like the image here — it was somebody who kept records, a kind of town clerk.

And that was, in part, the original meaning of the term when it was first used in England centuries ago: a recorder was “originally an appointed person with legal knowledge by the mayor and aldermen to ‘record’ the proceedings of their courts and the customs of the city. Such recordings were regarded as the highest evidence of fact.”2

But the position quickly changed to include other duties in England, and soon the Recorder was “a certain magistrate or judge having criminal and civil jurisdiction in a city or borough.”3 And when colonies like New Jersey (originally East and West Jersey) and New York imported the English common law, they also imported positions like the Recorder.4

The first New Jersey Constitution, in 1776, didn’t say anything much about the courts of the new state. It made the Governor and Council the Court of Appeals5 and set terms of office for “Judges of the Supreme Court,” “Judges of the Inferior Court of Common Pleas in the several counties,” and “Justices of the Peace”6 — without ever defining terms or saying how those people were selected or what their functions were.

What it did, however, was follow English common law: “the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter.”7

The Recorder’s job had existed in colonial times and, by virtue of that common law provision, continued into statehood. The 1844 Constitution didn’t reference the job specifically, or the Recorder’s Court over which a Recorder presided, but simply said that:

The Judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes, as heretofore; a Court for the trial of impeachments; a Court of Chancery; a Prerogative Court; a Supreme Court; Circuit Courts, and such inferior Courts as now exist, and as may be hereafter ordained and established by law; which Inferior Courts the Legislature may alter or abolish, as the public good shall require.8

An example of the Recorder’s tasks can be found in the Paterson City Charter and Ordinances of 1869, which gave the Recorder jurisdiction over “all criminal matters, in all matters relating to cases of bastardy, and to the relief, removal and settlement of the poor, and in all cases of vagrancy and disorderly persons,”9 and also made it the Recorder’s duty to investigate the origin and cause of any fire in the city.10

But the position still wasn’t mentioned in the third — and existing — New Jersey Constitution of 1947: “The judicial power shall be vested in a Supreme Court, a Superior Court, and other courts of limited jurisdiction. The other courts and their jurisdiction may from time to time be established, altered or abolished by law.”11

Shortly after the 1947 Constitution took effect, the position of Recorder and the Recorder’s Court were abolished in favor of the current system of municipal courts in New Jersey.12

So, back to Chris’ case.

What was going on in the Recorder’s Court — that hearing referenced in contemporary newspaper accounts — would have been the inquiry into criminal responsibility for the accident.

But because the Recorder only had limited criminal jurisdiction — murder, for example, would be tried in a higher court — and because there aren’t any records of the case held by the higher courts of the day, chances are pretty good that the truck driver wasn’t charged with anything beyond a local offense (a motor vehicle violation, for example) if there was any criminal liability found at all.

So if there are records still in existence as to criminal charges out of this accident, they’d probably still be held by the successor to the local Recorder in that town — the modern Municipal Court. At least the clerk of that court may know what became of the records from 1934.

A more intriguing question is, if the widow was given the right to sue — to bring a civil case, why can’t the case be found in the records of the New Jersey Superior Court?

Three possibilities.

First and foremost, there wasn’t a Superior Court in 1934. That court was created by the 1947 Constitution. The predecessor court for civil cases for wrongful death would have been the Circuit Court of the county. But if the case had been brought in a Circuit Court, the State Archives should have at least a record of the judgment.13

And some county Circuit Court case files haven’t been transferred to the State Archives:14 if they still exist, they’ll be at the county courthouse.

The second possibility arises from the fact that the truck driver and the trucking company that owned the truck weren’t from New Jersey. That means the case could well have been brought in federal court, rather than state court. That’s because the U.S. Constitution has always given federal courts jurisdiction over “controversies … between citizens of different states.”15 And if that’s the case, the records will be in Record Group 21, Records of U.S. District and Other Courts in New Jersey 1789-1982, held by the National Archives in New York City.16

And, of course, the third possibility is that a lawsuit was never filed — either because the accident was determined not to be the fault of the other driver or because just the threat of a lawsuit led the trucking company to offer a settlement without litigation.

Great question. And we’re all waiting to hear what Chris finds out…


SOURCES

  1. Administration Ad Prosequendum,” Surrogate’s Office, Mercer County (http://nj.gov/counties/mercer/officials/surrogate : accessed 9 Mar 2014).
  2. Wikipedia (http://www.wikipedia.com), “Recorder (judge),” rev. 9 Feb 2014.
  3. Ibid.
  4. For a discussion of the position in New York, see Judy G. Russell, “The Recorder Judge,” The Legal Genealogist, posted 11 Feb 2013 (http://www.legalgenealogist.com/blog : accessed 9 Mar 2013).
  5. Article IX, New Jersey Constitution of 1776, The Official Website of the State of New Jersey (http://www.nj.gov/ : accessed 9 Mar 2014).
  6. Ibid., Article XII.
  7. Ibid., Article XXII.
  8. §1, Article VI, New Jersey Constitution of 1844, The Official Website of the State of New Jersey (http://www.nj.gov/ : accessed 9 Mar 2014).
  9. §45, Title IV, Charter and Ordinances of the City of Paterson, New Jersey (New York, A. Carr & Co. printers : 1869); digital images, Google Books (http://books.google.com : accessed 9 Mar 2014).
  10. Ibid., §52.
  11. Paragraph 1, §1, Article VI, New Jersey Constitution of 1947, New Jersey Legislature (http://www.njleg.state.nj.us/ : accessed 9 Mar 2014).
  12. See, e.g., Donald Janson, “Jersey’s Last Lay Judge Uses Common Touch,” New York Times, 3 Nov 1986 (http://www.nytimes.com : accessed 9 Mar 2014).
  13. See Circuit Court Judgments, 1845-1948, “Circuit Court,” New Jersey State Archives (http://www.nj.gov/state/archives : accessed 9 Mar 2014).
  14. See ibid. for a list of the county records that are held by the Archives.
  15. Article III, §2, Constitution of the United States.
  16. See “Records of District Courts of the United States,” Guide to Federal Records, National Archives (http://www.archives.gov/ : accessed 9 Mar 2014).
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17 Responses to For the Record(er)

  1. charlene key sokal says:

    Excellent explanation of a case that would have been exceptionally difficult for the majority of folks to sort out. Many, many thanks for the assistance to all of us.

  2. Thanks for posting this, Judy. I’m getting ready to get elbow-deep in some New Jersey court records from the 1920s and 1930s, so this will be helpful.

    So the term “Administrator Ad Prosequendum” is kind of the same thing we have here in Tennessee when we have a family member appointed as administrator ad litem of an estate that has been opened for a cause of action only, I guess?

    For the record, I like their term better.

  3. Sylvia P. Simms says:

    If there are no Circuit court records about this case, perhaps an insurance company was involved. The investigator would have reported the claim to the state insurance commissioner. I am sure it may not have been this simple, but worth a shot in the research.

    • Judy G. Russell says:

      I’m not at all sure what the reporting requirements (or the insurance requirements!) were in 1934, but it’s certainly worth checking, Sylvia!

  4. Roger Dudley says:

    I find that on questions such as this, especially when the date is known, it is always helpful to check the local newspapers. Invariably they will report on which court the case took place in, and the final action – if any – taken by the court.

    These can lead to other records that are perhaps still available.

    • Judy G. Russell says:

      Good idea too, Roger. I believe Chris has already done a newspaper search here since the article on the hearing before the Recorder was located. But in general looking at the newspapers should be a regular part of our fact-check routine, for sure!

  5. Shelley says:

    I can’t wait to see what he finds out.

  6. Donn Devine says:

    Those old Latin titles did have a certain flair. I was once an administrator d.b.n., c.t.a. (de bonis non, cum testamento annexo), now called more understandably a successor administrator with will attached. The old terms executor, executrix, administrator, and administratrix are now frequenly replaced by the gender-neutral term personal representative.

    • Judy G. Russell says:

      The terms may have had a flair, Donn… but I’m grateful for the English since I have enough trouble with one language!

  7. Jeanette Hopkins says:

    If a settlement was paid without a trial, why would the insurer reveal the name with the amount to the state insurance board? Is that a normal practice then or now? I work at a PI law firm in Oregon and wasn’t aware that might be the case.

    • Judy G. Russell says:

      Any such reporting requirement would have been in a single state and only at a particular time or under particular circumstances, as required by law. For example, a settlement of such magnitude that it might affect the financial stability of an insurer might have to be reported. But this would be a local practice, under the state laws or regulations of the time and place.

  8. Jade says:

    Special thanks for the guided tour of this rocky path!

  9. Mark says:

    Unfortunately, the likelihood of any records of genealogical consequence, other than perhaps estate records in the county Surrogate’s Office, surviving regarding these matters is slim. Current record retention standards for Municipal Court records call for the optional destruction of all papers other than, ironically, expunged complaints, after 15 years after the disposition of the case, or less. If the case had advanced, and the County Clerk had kept records, they are currently required to keep papers of former courts that existed prior to 1948 for 25 years. While the dockets are permanent records and may have survived, my experience in New Jersey is that they do not provide transcriptions of the court proceedings.

    • Judy G. Russell says:

      Retention dates really are not what we genealogists like to see, are they? But they’re a fact of life…

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