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Garza v. Paone

Decided: April 11, 1957.

JOSEPHINE GARZA, AN INFANT BY JOSEPH GARZA, AS HER GUARDIAN AD LITEM, AND FRANK FINO, PLAINTIFFS-RESPONDENTS,
v.
NICHOLAS PAONE, BY SOLOMON GOLDMAN, AS HIS GUARDIAN AD LITEM, DEFENDANT-APPELLANT, AND STEPHEN JURCZAK, DEFENDANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D. Freund, J.A.D. (dissenting).

Conford

An action was brought November 23, 1951 by the plaintiff against the defendant Paone and one other person for negligence in the operation of a motor vehicle resulting in injury to the plaintiff while she was riding as a passenger on a motorcycle. There is a conflict as to how the accident happened, but it is immaterial for present purposes.

Paone was 18 1/2 years of age at the institution of the action. According to the sheriff's return of service, he was served by leaving a copy of the summons and complaint "with a member of his family over the age of fourteen years * * *." He claims, and there is no proof to controvert his contention, that he was not personally served. There was therefore a failure to obtain personal jurisdiction over this defendant, since the rule of court, then Rule

3:4-4 (now R.R. 4:4-4), required that service upon an infant be made by delivery of process to his parent or guardian or a competent member of his family and also to the infant himself if he is over the age of 14 years, as this defendant then was. It appears from the affidavits that after expiration of time for answer the defendant consulted an attorney (other than present counsel) about suit papers in this matter and that the lawyer explained his rights to him and inquired of plaintiff's counsel concerning an extention of time to file an answer but never was authorized by defendant to do anything further in connection with the matter. Defendant's sworn statement that he has no knowledge or information concerning the delivery of suit papers and that they were never called to his attention is obviously untrue.

On April 8, 1952 plaintiff's attorney filed an affidavit of default and a request to enter default. On June 9, 1952 notice of a motion for the appointment of a guardian ad litem for the defendant was served upon the father of the defendant at their home, but not upon defendant, as required by then Rule 3:17-2 (now R.R. 4:30-2). On June 20, 1952 an order was entered appointing Solomon Goldman, an attorney, to be guardian ad litem of the defendant. There is no competent evidence before us as to whether the guardian took any action in the performance of the duties of his guardianship. No affidavit from the guardian has been produced by either side. In any event there is no indication on the record that he appeared for the defendant.

On June 9, 1952 a notice of motion for the entry of judgment by default was served on the defendant's father, but not on the guardian ad litem. The attorney for the plaintiff says in an affidavit that he wrote to the guardian that he thought it advisable that the guardian should write to the defendant and his father "to determine what they intended to do with respect to the assessment of damages," but no copy of that letter is appended to the affidavit.

The case was tried, uncontested, before Judge Leyden and a jury on October 30, 1952, and a verdict was entered

in favor of one of the plaintiffs in the sum of $1,500 and of the other in the sum of $2,500, against both defendants. Judgment followed November 6, 1952.

In June 1956 a motion was filed by this defendant pursuant to R.R. 4:62-2 for an order setting aside the judgment and opening the default on the grounds of failure of proper service of summons and complaint, improper service of the notice of motion for the appointment of the guardian ad litem and the failure of the guardian ad litem to protect his interests, and reciting facts indicating the possession of a meritorious defense to the action by the defendant.

The motion was denied on the ground that the application was made too late. Hence this appeal.

The service purportedly made upon the infant defendant was defective because no copy of the summons and complaint was served upon him personally, as required by the rule. There was consequently no in personam jurisdiction against the defendant and the judgment is absolutely void and of no legal effect for any purpose (see Essanay Film Mfg. Co. v. Kane , 258 U.S. 358, 362, 42 S. Ct. 318, 66 L. Ed. 658 (1922)), whatever we may determine as to the merits of the present appeal. Driscoll v. Burlington-Bristol Bridge Company , 8 N.J. 433, 493 (1952); X-L Liquors, Inc., v. Taylor , 29 N.J. Super. 486, 490 (App. ...


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