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Herman v. Arndt

Decided: January 31, 1936.

BERT HERMAN, PLAINTIFF-APPELLANT,
v.
KURT ARNDT, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the plaintiff-appellant, Arthur E. Dienst and Abram A. Golden.

For the defendant-respondent, Harold K. Smith.

Case

The opinion of the court was delivered by

CASE, J. The appeal is from an order in the Supreme Court setting aside service of a writ of capias ad respondendum.

Plaintiff and defendant, on February 8th, 1935, as operators of respective automobiles, experienced an automobile collision on the Pulaski Skyway. Both were taken to the Oakland avenue police station in Jersey City, and defendant was put under cash bail to appear for hearing on a charge of reckless driving. On the hearing date defendant, a resident of the State of Michigan temporarily sojourning in New York, came from the city of New York for the sole purpose of attending the hearing and returning to New York City immediately thereafter. As he was leaving the court room he was arrested on the capias, issued at the instance of the plaintiff in a civil action in the Essex Circuit for damages growing

out of the collision. Defendant was thrown into jail and kept there for two days, when, eight-thirty P.M. Saturday, March 2d, he obtained and deposited cash bail and was released. On March 5th, he gave notice of motion for March 9th which developed into the rule to show cause why the writ should not be vacated. Mr. Justice Parker allowed the rule as on a special appearance, decided upon the return that the defendant was exempt from arrest at the time of the service of the capias and made the order from which plaintiff now appeals.

Appellant has written down several grounds of appeal which respondent asserts, without contradiction, were not raised in the court below and which, so far as we can determine from the record, were not there raised. A question not presented and argued in the court below will be held to have been waived and abandoned and will not be considered in an appellate tribunal. Kip v. Peoples Bank and Trust Co., 110 N.J.L. 178. Therefore we comment upon only three of the points presented on appellant's brief.

It is said that inasmuch as the court upon which the defendant was in attendance was of limited and not of general jurisdiction, immunity did not exist. The established rule of public policy in this state is that a non-resident party to a suit, and, with somewhat different form of relief, even a resident party, while necessarily going to, staying at or returning from the court, whether civil or criminal, is privileged from the service of a summons or of a capias in a civil action. Michaelson v. Goldfarb, 94 N.J.L. 352 (and earlier cases cited therein); Prescott v. Prescott, 95 N.J. Eq. 173; Michelin v. Michelin, 100 Id. 64; Golde v. Golde, 108 Id. 519; Kutschinski v. Kutschinski, 112 Id. 341; Brown v. Brown, Ibid. 600; Blair v. Vetrano, 12 N.J. Mis. R. 462. The reasoning appears sufficiently in Michaelson v. Goldfarb, supra, and Halsey v. Stewart, 4 N.J.L. 366. Appellant's point is not supported by his citations. It is against the spirit and reasoning of our decisions. The purpose of the rule would not be served by such a distinction. The point is not well taken.

It is further said that the defendant in entering into a

recognizance and posting bail ipso facto entered a general appearance in the cause; and the following New Jersey decisions are cited: Moore v. Richardson 65 N.J.L. 531; 47 A. 424; Ferenga v. Moskowitz, 1 N.J. Mis. R. 169; 130 A. 814; Sullivan v. Moffat, 68 N.J.L. 211; 52 A. 291; Morgan v. Bowman, 103 N.J.L. 542; 137 A. 655; Laura v. Puncerelli, 91 N.J.L. 38; 102 A. 433; Logan v. Lawshe, 62 N.J.L. 567; 41 A. 751. Most ...


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