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Charles v. Fischer Baking Co.

New Jersey Supreme Court


Decided: October 2, 1936.

ERNEST CHARLES, PLAINTIFF-APPELLANT,
v.
FISCHER BAKING COMPANY, A NEW JERSEY CORPORATION, JAMES F. MACNEILL, IRENE L. RAINEAR AND EVERETT L. JONES, DEFENDANTS-RESPONDENTS

On appeal from the Supreme Court, whose opinion is printed in 14 N.J. Mis. R. 18.

For the plaintiff-appellant, Richard F. Green and Phidias L. Pollis.

For the defendant-respondent, Everett L. Jones, A. William Wann and Reginald V. Spell.

[117 NJL Page 116]

PER CURIAM.

Appellant, a resident of the State of New York, undertook to bring suit against Everett L. Jones, respondent and the only defendant concerned with this appeal, a resident of the State of California, by service of summons and complaint upon the commissioner of motor vehicles under section 1, chapter 69, Pamph. L. 1930, as amended by section 1, chapter 69, Pamph. L. 1933. Circuit Court Judge Oliphant, sitting as a Supreme Court commissioner, granted respondent's motion to vacate the service. The authority of the Supreme Court commissioner to entertain the motion is not made an issue, and we express no opinion thereon. Also, the point is not made that the order appealed from is not a final disposition of the cause, and we therefore reserve this question.

It is certain that the appellant may not effect service by the attempted mode unless he is granted that right by the cited statute. With equal certainty, the statute does not grant the right. Appellant argues that for the reasons suggested by him the words "by any resident of the State of New Jersey" -- the statutory language descriptive of the actor at whose suit such a service may be made -- should be stricken, whereupon the application of the statute would be without restriction and therefore comprehensive of the appellant. But those words, in our opinion, are not severable from the remainder of the statute. That which would be left after such a judicial act would be substantially different from the statute which the legislature enacted. The statute may not be twisted to do that which appellant wishes to have done The attempted service was wwithout authority.

Affirmed.

[117 NJL Page 117]

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, BODINE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 12.

For reversal -- None.

19361002


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