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Merkling v. Merkling

Decided: March 29, 1954.

EDITH MERKLING, PLAINTIFF,
v.
FRED C. MERKLING, DEFENDANT



Hegarty, J.s.c.

Hegarty

[30 NJSuper Page 273] This is a proceeding brought at the instance of plaintiff's attorney on petition and order issuing thereunder directing plaintiff and defendant to show cause why he is not entitled to a lien for his services, and why the

court should not proceed to fix and determine the amount of said lien pursuant to said petition and enforce the same. Petitioner also demands a determination by the court as to the disposition of the above titled cause.

In substance the petition sets forth: He is an attorney and counsellor at law of the State of New Jersey and on or about January 12, 1954 he was called by plaintiff concerning the bringing of an action for separate maintenance against her husband. He consulted with plaintiff in her home in Wood-Ridge, New Jersey, on January 13 and 14, 1954 and arrangements were then made as to the legal methods to be employed in plaintiff's behalf. A complaint was drafted and its corresponding summons prepared for separate maintenance alleging an abandonment and refusal and neglect to maintain and provide for plaintiff and praying for suitable support and maintenance in her behalf. The said complaint was filed and he paid the required fee of $25 out of his own money. A notice of motion was drawn with its attending affidavits and signed by the plaintiff in her home. The papers were served on Hubert J. Franklin, Esq., as attorney for defendant, Fred C. Merkling. On Monday, January 18, 1954, plaintiff addressed a letter to petitioner requesting a discontinuance of the action and since that time he has not been able to obtain the cooperation of plaintiff in the cause. He fixes the reasonable value of his services in the sum of $100 plus $25 for disbursements and has duly demanded payment thereof of both plaintiff and defendant.

On return of show cause order on February 19, 1954 no one appeared on behalf of either plaintiff or defendant.

An examination of the file shows the pleadings thus far filed in the cause to be:

1. Complaint (no summons), filed January 15, 1954;

2. Petition and order to show cause filed January 29, 1954;

3. Affidavit of service of true copy of petition and order to show cause upon defendant, Fred C. Merkling, on February 1, 1954.

The record does not disclose service of summons and complaint upon the defendant and, therefore, the court is

without jurisdiction to act in the cause. It does not appear that a copy of petitioner's bill for fees, charges and disbursements has been delivered to the plaintiff. Obviously the instant proceeding in the light of the applicable law will not justify judgment against either plaintiff or defendant.

The answer to the question of whether the petitioner is entitled to have a lien, common law or statutory, in the circumstances, is found in the case of Visconti v. M.E.M. Machinery Corp. , 7 N.J. Super. 271, 275 (App. Div. 1950), in the language set forth below. ...


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