Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D.
The State appeals from the reversal by the Morris County Court of a conviction of the defendant in the Municipal Court of Parsippany-Troy Hills for operation of an overwidth truck in violation of N.J.S.A. 39:3-84. The reversal was based upon the ground that the complaint in the municipal court was unverified in contemplation of law because the individual who took the jurat to the affidavit of verification purportedly as clerk of the court was not legally in office as such clerk by any valid appointment at the time he acted in the present matter.
The original briefs on the appeal of this case dealt substantially only with the question as to the validity of the appointment of Frank Castro, who took the jurat, as municipal court clerk, within the requirements of N.J.S. 2 A:8-13 and the statute relating to the form of government of the municipality (N.J.S.A. 40:69A-31 to 48; Mayor-Council Plan A), and as to the existence and effect of his status as clerk de facto if not de jure in relation to the efficacy of his action in taking the jurat. At the oral argument we directed the parties to file supplemental briefs bearing upon the question, among others, as to whether the alleged defect in relation to the verification should not be deemed to have been waived by the taking of the appeal to the County Court, within R.R. 3:10-10(b). Upon consideration of the supplementary briefs filed on this point we have concluded that this appeal should be determined solely on the basis of the point last mentioned, as we are convinced that there was, indeed, a waiver by defendant, through the taking of the appeal to the County Court, of any defect which may have infected the complaint because of any lack of status on the part of the person who took the jurat to the oath, and that this is the more appropriate basis for the disposition of the appeal.
In considering the nature of the requirement for verification of complaints in traffic cases we look to the statutes and rules of court. N.J.S. 2 A:8-21 gives municipal courts jurisdiction over violations of the motor vehicle and traffic
laws committed within their territorial jurisdiction. The present case falls in that category. Particular governance of the procedure for institution of a prosecution in such a court in a traffic case has long been specified by N.J.S.A. 39:5-3. Prior to 1953 the statute called for the making of a complaint "in writing and duly verified" as the basis for the issuance of process against the defendant. By virtue of the amendment of the section, however, by L. 1953, c. 36, the requirement of verification of the complaint was eliminated. There was thus no statutory command for a verification on November 24, 1956, when the defendant in this case was served with the summons and complaint in this matter.
The inquiry then devolves upon the effect of the pertinent court rule, R.R. 8:3-1(a), which, as of the time of filing of the present complaint, required all complaints in the municipal courts to be "made upon oath before any magistrate or other person empowered by law to take complaints." Although that rule was amended June 27, 1958, to become effective September 3, 1958, so as to delete the requirement of a verification in traffic cases, the defendant is, of course, entitled to take such advantage as he properly can from the fact that a verification was still called for by the rule of court when the complaint in this case was made. Assuming, thus, that Mr. Castro was without authority to take the jurat to the affidavit, we proceed to assess the State's argument to the effect that the resulting defect was waived when the defendant appealed to the County Court, as a consequence of R.R. 3:10-10(b), which reads:
"(b) The appeal shall operate as a waiver of all defects in the record, including any defect in, or the absence of any process or charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances, of which the tribunal from whose judgment or sentence the appeal is taken had jurisdiction."
Defendant's position is that the lack of the required legally executed verification goes to the court's jurisdiction over the subject matter of the prosecution, absence of which cannot be waived by appeal. There can be no dispute that lack of jurisdiction of a court over subject matter is fatal to any judgment and its effect not susceptible of waiver, State on Complaint of Bruneel v. Bruneel , 14 N.J. 53, 58 (1953), but we do not agree that the assumed deficiency in the verification here deprived either of the trial tribunals of jurisdiction to deal with the matter.
Three county court decisions cited by defendant are generally in accord with its position: State v. Walters , 14 N.J. Super. 234 (Cty. Ct. 1951); State v. Auf Der Heide , 23 N.J. Super. 56 (Cty. Ct. 1952); State v. Mershon , 39 N.J. Super. 599 (Cty. Ct. 1956). The Walters case relied upon the statutory requirement of a verification, which had not yet then been exscinded, and, in part, upon the fact that the waiver court rule cited above had not been promulgated when the complaint in that case was filed. Neither of the other cases cites the waiver court rule, but it is clear that both are grounded in the concept that a properly executed verification was essential to the magistrate's jurisdiction over subject matter. We think this viewpoint unsound.
It is clear from what has been said above that as of November 24, 1956 the requirement of a verification in complaints in traffic cases was based upon rule of court, not statute. See State v. Bernstein , 38 N.J. Super. 196, 199 (Cty. Ct. 1955). This alone is sufficient to dispatch the notion that jurisdiction over subject matter was implicated in the present case, since it is elementary that ordinarily court rules properly concern only procedure, not substance, Winberry v. Salisbury , 5 N.J. 240 (1950), while jurisdiction over subject matter is conspicuously beyond the procedural realm, resting ...