On appeals from Superior Court, Law Division, certified to Supreme Court of its own motion.
No. A-100: For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. No. A-101: For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Burling and Brennan. For affirmance -- Justices Heher, Wachenfeld and Jacobs. The opinion of the court was delivered by William J. Brennan, Jr., J. Heher, J. (dissenting in part). Heher, J., concurring in result.
The plaintiff in each case appeals from a judgment for the landowners, defendants DeStefano, in an action to enforce a materialman's lien for materials furnished for a house constructed for the DeStefanos by the defendant Farro, a builder. The appeals were taken to the Appellate Division and are here upon certification of our own motion.
The judgment in the Nitti action was entered by the trial judge at the close of the proofs upon the DeStefanos' motion for an involuntary dismissal and the discharge of the lien. The judgment in the action by Columbia Lumber and Millwork Co., Inc. (referred to hereafter as Columbia), was entered upon a jury verdict of no cause for action.
Both appellants argue that the trial court committed error in ruling that the lien must be discharged if summons did not issue within five days after the filing of the complaint. The trial court based the ruling upon an amendment by L. 1949, c. 111, p. 445, to R.S. 2:60-137 (since superseded by N.J.S. 2 A:44-99), which provided "* * * if such claimant shall fail to issue the summons within five days after the filing of the complaint * * * or such further time as the court may by order direct, the lien shall be discharged by an order signed by a judge of the Superior Court or a judge of the County Court."
In the Nitti action the motion for dismissal was granted because the summons issued, at the earliest, nine days after the filing of the amended complaint. In the Columbia action the trial judge viewed the proofs as presenting a jury question whether summons issued the day before or on the day of, but following, the filing of the complaint, and submitted the issue under an instruction, "If it was issued before the complaint was filed the verdict must be for no cause for action."
We do not see that any question of the issuance of the summons prior to the filing of the complaint was raised by the proofs in the Columbia action, and have therefore concluded that it was error to submit that question to the jury.
The claimant's attorney mailed the summons, dated October 16, 1951, with the complaint to the Superior Court Clerk at Trenton. The attorney seems to have overlooked the change in practice by which a civil action is now initiated by the filing of the complaint and not by the issuance of the summons. Rule 3:3-1; R.S. 2:60-137 as amended, supra. Both the summons and the complaint were stamped by the clerk as filed October 17. However, the attorney's transmitting letter expressly requested the clerk to "file, seal and return copy to me so that service can be made upon the defendants." Plainly, the attorney's action in mailing the summons to the clerk was not the issuance of the summons nor intended so to be. The letter made it clear that the issuance of the summons was not contemplated until after its return to the attorney. Thus the essential of an "absolute, positive, and unequivocal" intent to issue the summons was absent. Williams v. Evenstein, 2 N.J. 60 (1949).
The parties tried the case on the theory that if the mailing of the summons to the clerk was not the issuance of the summons, it was issued on the day of, but following, the formal filing of the complaint in the clerk's office. The attorney testified, "I issued the summons on the 17th of October with the intent of delivering the same to the Sheriff for service." Actually the summons was not delivered to the sheriff until January 21, 1952. This was because the attorney acceded to the request made personally by the DeStefanos on October 17 to delay its delivery to the sheriff to afford them an opportunity to settle the several claims against their property, and considerable effort to effect a settlement, ultimately unsuccessful, was made in the intervening period. That conduct of the DeStefanos may estop them to raise the question whether the summons issued on October 17; but, although we are deciding the issue upon the premise which the parties and the trial court proceeded upon at the trial, we are not to be understood as holding that the summons did issue on that date. The claimant's attorney abandoned his purpose to forward the summons to the sheriff on October 17 and, whatever the reason therefor,
the summons plainly did not issue on that day within the test of what constitutes the issuance of a summons laid down by Williams v. Evenstein, supra. The case, however, must be returned for a new trial because we cannot say whether the verdict of the jury turned on that issue or on another issue submitted for its determination, namely, whether the action was commenced within four months from the date the last materials mentioned in the claim were furnished by Columbia. There is a clear conflict in the testimony in that regard, and Columbia's contention on this appeal that there is not has no merit.
The Nitti action does require our decision whether the failure to issue the summons within five days after the filing of the complaint makes it mandatory that the trial court discharge the claimant's lien. Nitti urges here, as he did upon the trial, that whether an action should be dismissed by the court for failure to issue the summons within time is purely a matter of practice and procedure governing the disposition of causes and thus not constitutionally within legislative cognizance but within the exclusive rule-making power of the Supreme Court under Article VI, Section II, paragraph 3 of the 1947 Constitution, as that provision was construed in Winberry v. Salisbury, 5 N.J. 240 (1950), and see George Siegler Co. v. Norton, 8 N.J. 374 (1952), and that, under Rules 3:4-1 and 3:41-2, the trial court was empowered "in its discretion" to determine whether an order of dismissal should be made in light of the particular circumstances accounting for the failure to issue summons within time. The DeStefanos respond that the mechanics' and materialmen's lien was unknown to the common law and exists only by reason of statute, and that the Legislature intended that a claimant was to be allowed the lien to ...