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Leek v. Wieand

Decided: March 7, 1950.

J. RAYMOND LEEK, EXECUTOR OF THE LAST WILL AND TESTAMENT OF HENRY D. WIEAND, DECEASED, PLAINTIFF,
v.
BESSIE M. WIEAND, ET AL., DEFENDANTS



Haneman, J.s.c.

Haneman

This is an application by Franklin D. Wieand, III, one of the defendants in the above entitled action, seeking (1) to set aside an entry of default heretofore entered against him; (2) to reopen and vacate that portion of a judgment entered March 21, 1949, designated as paragraphs 3 and 6; (3) to obtain permission to file an answer and defend on the merits; (4) to obtain an immediate refund of the payment of $6,266 heretofore made to Bioren & Co.

The principal basis upon which he seeks such relief is that since service was made upon him as an absent defendant in the State of Pennsylvania, under an order of the Court of Chancery, which he alleges was improvidently or improperly entered, this court had no jurisdiction over him, and the default and resulting judgment as entered were void. Reduced further to its salient aspects, his argument finds its expression as follows: The suit as commenced, insofar as the result of which he now complains is concerned, is an action in personam , and service not having been personally made upon him within the State of New Jersey, is insufficient to subject him to the jurisdiction of our courts.

The pivotal question is, -- Is the action sub judice an action in personam or in rem or quasi in rem ?

In order to intelligently resolve the propounded question it becomes necessary to analyze the allegata of the complaint, the relief demanded in the complaint and the relief granted by the judgment.

The bill of complaint as filed in the then Court of Chancery, which was filed on March 1, 1948, contains the following allegations:

"6. Complainant also finds from the books and records of said decedent that decedent opened a trading account with Bioren & Co. in the name of Franklin D. Wieand, III, on which there was an indebtedness to Bioren & Co. of $2,436.85, as of November 16, 1947, and there are at the present time certain securities securing said account which were paid for by the decedent and for which said Franklin D. Wieand, III owed decedent as of November 16, 1947, the sum of $6,266.00. Complainant is informed, believes and therefore avers the fact to be that the securities in said account were intended to secure the payment of said indebtedness of $6,266.00 owed to decedent. A list of said securities is hereunto annexed, made a part hereof as though fully herein set forth and marked Exhibit 'N'."

The bill of complaint prays for the following relief:

"5. That this court may declare the complainant's rights with respect to the securities carried by the decedent, Henry D. Wieand, with Bioren & Co. under the name of Franklin D. Wieand, III."

Paragraphs 3 and 6 of the judgment reads as follows:

"III. It is further ORDERED and ADJUDGED that the plaintiff, J. Raymond Leek, Executor of the last Will and Testament of Henry D. Wieand, deceased, and all of the other parties to this suit, particularly Bioren & Co., and Franklin D. Wieand, III, Defendants, be instructed, and it is hereby ORDERED and ADJUDGED that the securities and cash described in the Complaint, and standing in the name of the defendant, Franklin D. Wieand, III in the possession of the defendant, Bioren & Co., be turned over, delivered, assigned and transferred forthwith to the plaintiff, J. Raymond Leek, Executor as aforesaid, and that he, J. Raymond Leek, Executor, pay over to said Franklin D. Wieand, III from the proceeds of said securities when sold the excess, if any, over and above the indebtedness of Franklin D. Wieand, III to Bioren & Co., and to J. Raymond Leek, Executor secured thereby, as stated in the Bill of Complaint."

"VI. And it is further ORDERED and ADJUDGED that the plaintiff be instructed, and it is hereby ORDERED and ADJUDGED that

the plaintiff upon recovering the sum of $6,266.00, without interest, for this estate out of the securities referred to in Paragraph III hereof shall thereupon cancel the indebtedness of Franklin D. Wieand, III in the sum of $6,266.00 being a loan under date of November 16, 1947, there being no further moneys due thereon."

By order dated March 22, 1948, service upon Franklin D. Wieand, III, was directed to be made upon him as an absent defendant by either personal service of the order to plead or by publication and mailing. Such service was made on him in Pennsylvania on April 2, 1948. He did not file an answer to the complaint.

Bioren & Co., who had acknowledged service of subpoena through its New Jersey counsel, filed its answer on March 25, 1948, admitting that it had a trading account in the name of Franklin D. Wieand, III, upon which there was due it the sum of $2,436.85, but disclaiming any ...


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