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Dion v. Gicking

Decided: February 7, 1957.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


This is an appeal from a Law Division interlocutory order in favor of plaintiff denying defendant's motion to dismiss for lack of proper service.

Plaintiff sued to recover for personal injuries allegedly resulting from defendant's negligent operation of his automobile. The summons and a copy of the complaint were left at the residence of his parents with defendant's grandmother at a time when he was serving in the armed forces of the United States and located out of the State. The trial judge found that defendant's place of abode was not in the State of New Jersey and concluded that the service was obviously faulty. R.R. 4:4-4(a); Eckman v. Grear , 14 N.J. Misc. 807, 187 A. 556 (C.P. 1936); Kurilla v. Roth , 132 N.J.L. 213 (Sup. Ct. 1944).

Defendant answered on the merits, generally denying negligence and raising the affirmative defenses of unavoidable accident, contributory negligence, assumption of risk and intervening agency. In addition, in his first and second defenses he specifically reserved the right to contest service of process, in accordance with R.R. 4:12-2. However, defendant made no prompt motion to challenge the service or to dismiss the action for obvious defect in service. Instead, interrogatories were propounded to plaintiff inquiring more specifically as to the nature and seriousness of his claimed injuries and medical expenses incurred. Plaintiff having failed to answer the interrogatories, the defense moved to dismiss the complaint. No hearing was had on the motion because the interrogatories were answered prior to the date set for the argument.

The defense next moved for an order compelling plaintiff to submit to a physical examination. We are informed that the court did not decide the motion but directed defendant to move to dismiss in accordance with the first and second separate defenses of the answer. This was done. The trial court denied the motion to dismiss because, in addition to the filing of a military affidavit, the defense had taken the pretrial discovery steps just mentioned. These, in the opinion

of the trial judge, constituted a general appearance, R.R. 4:4-6. In so holding he said:

"I think a true interpretation of the rule, while it gives the defendant the opportunity to challenge personal jurisdiction of the court over him on questions of process or otherwise, not only by a preliminary motion to dismiss but by an affirmative defense pleaded in the answer, may not be extended to include the taking of all intermediate discovery steps as though he were an actual party before the court, and then bring on the matter for disposition at or before trial time. That interpretation of the rule would completely disrupt the calendar status of the courts, would make adversary parties fully prepare a case for trial only to find that the matter would be dismissed by the court at the very trial, and I think would promote injustice, and is not the proper construction of the rule."

The single issue before us is whether the defendant, by his pretrial activity in filing interrogatories, moving for dismissal for failure to answer them, and moving for an order compelling physical examination, waived his right to contest the insufficiency of service of process specifically set up by way of separate defenses in his answer. Our conclusion is that he did not.

R.R. 4:12-2 requires that every defense to a claim for relief in any pleading shall be asserted in the answer thereto, except that certain defenses, among them lack of jurisdiction over the person (clause b), insufficiency of process (clause c), and insufficiency of service of process (clause d), may at the option of the pleader be made by motion before pleading, if a further pleading is to be made. The rule expressly provides that no defense or objection is waived by being joined with one or more other defenses or objections in an answer or motion. Special appearances are superseded.

R.R. 4:4-6 provides that a general appearance shall have the same effect as if the defendant had been properly served. The trial court must have proceeded on the basis of this rule in concluding that defendant's pretrial activity constituted a general appearance and, in effect, waived his right to contest the jurisdiction of the court over his person because of defective service of process. This conclusion is not consonant with

the clear intendment of R.R. 4:12-2 or the cases which have ...

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