On appeal from the Superior Court, Law Division.
For reversal -- Justices Case, Heher, Wachenfeld, Burling and Ackerson. For affirmance -- Chief Justice Vanderbilt, and Justice Oliphant. The opinion of the court was delivered by Ackerson, J.
This is an action in tort to recover damages for personal injuries alleged to have been caused by defendants' negligence. The main question presented for decision is whether such action was commenced within the two-year limitation period prescribed by the statute of limitations (R.S. 2:24-2).
The proofs disclose, without contradiction, that the accident occurred on July 16, 1947. Plaintiff at the time of the occurrence was engaged in his occupation as an employee of the Berger-Poetz Fuel Company in Paterson. The complaint in this action was stamped by the Clerk of the Superior Court in the following manner: "Received July 18, 1949" (being a Monday); "Filed July 16, 1949" (being a Saturday), and filing fee "Paid July 20, 1949." The "received" stamp was, according to the usual procedure, the first stamp placed upon a complaint when received in the Clerk's office and the file date was the next to be stamped thereon. The proofs also establish that it was the custom of the Clerk's office at the time in question to hold mail received on Saturdays unopened until Monday when it was opened and stamped as received on the Monday. The complaint herein also bears the penciled notation "N.C.," meaning that no check accompanied its receipt. The uncontradicted proofs further show that there was not sufficient money in the account which plaintiff's attorney kept with the clerk to cover the filing fee and that such funds were not made available until July 20, 1949, when the complaint was stamped "Paid July 20, 1949."
The defendants by their respective answers, as amended by the pretrial order, beside denying the charge of negligence, set forth the following separate defenses to plaintiff's claim, inter alia: (1) the statute of limitations, and (2) that the named plaintiff was not the real party in interest. Both of these separate defenses were incorporated into motions "to dismiss" (actually motions for judgment on the pleadings, Rule 3:12-3). Upon the return day of the motions, depositions
were submitted and testimony was taken in open court with respect to the aforementioned grounds. The trial judge therefore treated such motions as the equivalent of motions for summary judgment pursuant to Rules 3:12-3 and 3:56. At the conclusion of the hearing, the trial court granted defendants' motion on the first of the above grounds, i.e., that the suit was barred by the statute of limitations. Plaintiff appealed to the Appellate Division from the judgment entered thereon and we certified the cause on our own motion.
The applicable statute of limitations, R.S. 2:24-2 provides:
"All actions for injuries to the person caused by the wrongful act, neglect or default of any person or persons, * * * shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter."
Under the rules of civil procedure an action is commenced by the filing of the complaint. Rule 3:3-1. The essential issue is as to the time the plaintiff was entitled to have the complaint treated as "filed" within the contemplation of that rule.
Plaintiff argues that the trial court erred in dismissing the action as barred by the statute of limitations. Reliance is placed upon the aforementioned practice prevailing in the clerk's office of holding mail received on Saturday unopened until the following Monday when it was stamped as received, and, according to plaintiff's contention, is filed as of the preceding Saturday. The record here shows that July 16, 1949, was on Saturday and that July 18, 1949, fell on a Monday. Since the complaint herein bears the stamps "Received July 18, 1949" and "Filed July 16, 1949," the plaintiff would have the court infer that the complaint was actually received by the clerk in the ordinary course of mail on Saturday, July 16, 1949, and filed nunc pro tunc as of that date. However, for other reasons presently to appear, it is unnecessary to explore the theory thus advanced.
Defendants maintain that there are several essential acts which a party must perform before he is entitled to have a paper marked filed, i.e., (1) the presentation of the paper at the clerk's office, (2) payment of the filing fee. Counsel for the defendant railroad company further argues that the "processing" of a complaint after receipt by the clerk of the requisite filing fee is synonymous with the term "filed" and that such processing is a condition precedent to an effective filing.
In arguing that the payment of a fee is a prerequisite to an effective filing, defendants direct the attention of the court to the provisions of R.S. 22:1 A -5 and Rule 3:5-7. The contention made is that the statute makes it mandatory that a fee be paid upon the filing of a paper and that the same ...