On appeal from the Superior Court, Law Division, Morris County.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J. Heher, J., concurring in result.
The defendant-appellant Frank E. Mickey was a holder of an Interstate Commerce Commission license and permit for the operation of a motor vehicle in interstate commerce. He entered into a lease agreement with the defendant Schaeffer so that he, Schaeffer, might operate his tractor-trailer in interstate commerce under Mickey's permit. Both Mickey and Schaeffer were residents of the State of Pennsylvania. On February 17, 1951, the defendant Trenoskie was operating Schaeffer's tractor-trailer in Madison, New Jersey, when it collided with the automobile owned by the defendant Higbie and in which plaintiff was riding, allegedly as a passenger. As a result of the collision plaintiff says she suffered serious injuries and she brought an action in the Superior Court in Morris County to recover therefor against Higbie, Schaeffer and Trenoskie. The complaint was later amended to join Mickey as a party-defendant on discovery that the permit under which the tractor-trailer was operating belonged to him. Service of process was made upon Mickey through the Director of the Division of Motor Vehicles. The fourth count of the amended complaint alleges inter alia that Mickey, by virtue of the lease agreement entered into with Schaeffer which enabled the truck to be operated in interstate commerce, was responsible for the wrongful acts of Trenoskie which caused plaintiff's injuries.
On October 17, 1951, plaintiff's attorney was served with a notice of motion for summary judgment on behalf of the defendant Mickey on the ground that no genuine issue as to any material fact was presented and that the defendant was entitled to a summary judgment as a matter of law. Rules 3:56-2 and 3. This notice was filed on October 22, 1951, but argument thereon was adjourned from time to time. On November 23, 1951, plaintiff's attorney was served with another notice for summary judgment on behalf of Mickey on the ground that the Superior Court lacked jurisdiction in the case because service upon him was not properly obtained or duly served. This latter motion was
filed November 15, 1951, and both motions came on before the Superior Court, Law Division, for hearing on November 30, 1951. The first motion for summary judgment was denied by an order dated December 17, 1951, and filed December 27 of that year. The second motion was also denied by an order dated December 21, and filed on December 28, 1951.
The defendant applied to the Appellate Division for leave to appeal from the interlocutory orders entered, Rule 4:2-2(b), and an order granting such leave was made. Before argument in that court we certified the case on our own motion.
Appellant first argues that the process attempted to be served under the provisions of R.S. 39:7-2(b) was ineffective to confer jurisdiction upon the Superior Court. This statute makes provision for the service of process upon the Director of the Division of Motor Vehicles when any person "who by his, their or its agent or servant, shall cause (to) be driven upon any public highway of this State, any motor vehicle which is not registered in this State * * *" or "shall, by the operation of such motor vehicle, or by causing the same to be operated, within this State, make and constitute the Director of the Division of Motor Vehicles * * * his or their or its agent for the acceptance of process in any civil action or proceeding * * *." It is contended that since Schaeffer, the owner of the truck, was not his agent but merely operating the truck under his I.C.C. permit, the relationship of master and servant did not permit a service of process on the Director of the Division of Motor Vehicles which would be binding upon him. The contention is without merit.
There is no question here regarding the jurisdiction of the court below over the subject matter of this cause of action and jurisdiction over the person of Mickey, without considering the provisions of the statute, R.S. 39:7-2(b), was acquired by his consent thereto and his waiver of any objections regarding the manner in which it was acquired.
He appeared in the cause and made a motion for summary judgment. This constituted a general appearance and effected jurisdiction over the person. Turtur v. Schwarz, 15 N.J. Super. 241 (App. Div. 1951); Terminal Co. v. Stoicos, 24 N.J. Mis. R. 127 (Cir. Ct. 1946). In the latter case Justice Burling, while a judge of the Circuit Court, held that where a notice of motion to dismiss for lack of jurisdiction was coupled with a motion to strike out the affidavits filed, or in other words to strike out the whole proceeding, that such a motion was equivalent to a general appearance, the effect of which was to waive all objections to the jurisdiction of the court over the person of the defendant. Rule 3:4-6 provides that a general appearance shall have the same effect as if the defendant had been served by the sheriff.
It must be borne in mind that in this case Mickey made his motion for summary judgment first and later made his motion attacking the jurisdiction of the court. This time sequence was fatal to him; his motion as to faulty service upon him came too late. Rule 3:12-2 while abolishing special appearances, provides that the defense of lack of jurisdiction over the person, if made by motion, must be made prior to pleading if a further pleading is to be made, but it does not provide that it shall be made before the making of any other motion. When this Rule, 3:12-2, is read in conjunction with Rule 3:4-6, it is clear that a motion made to the jurisdiction must be made before taking any step in the cause which constitutes a general appearance such as here the motion made for summary judgment.
Our determination of the jurisdictional question effectively disposes of this appeal, but as the cause will have to proceed to trial we deem it advisable to decide the other point ...