Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
[54 NJSuper Page 87] This appeal is by one of the defendants below, William D. Roeger, Jr., from an order of the Superior Court, Law Division, denying for the second time, on rehearing, the defendant's motion to vacate and set aside a judgment by default entered on December 10, 1957 against William D. Roeger, Sr., and William D. Roeger, Jr., trading as C. F. Roeger & Son, and C. F. Roeger & Son, Inc. Roeger, Jr., seeks to have the judgment set aside as to him as void under R.R. 4:62-2(d) on the ground that he was never personally served with a summons and complaint and, as a result, the court lacked in personam jurisdiction over him. Garza v. Paone , 44 N.J. Super. 553 (App. Div. 1957). In the alternative, Roeger, Jr., aspires to have the judgment opened under R.R. 4:62-2(a) so that he may interpose a defense.
In September 1952 young Roeger came out of military service and resumed work in his father's business, assisting in office administration and sales work. The firm of C. F. Roeger & Son was engaged in the building and construction trade and had been started by young Roeger's grandfather; this allegedly accounts for the "& Son" in the name. Roeger, Jr., at first received a salary of $85 per week which by 1957 had climbed to $135. Both father and son in their testimony vigorously deny that Roeger, Jr., was anything other than an employee in the firm. The firm became incorporated under the name C. F. Roeger & Son, Inc., on April 1, 1957. Roeger, Jr., is an officer, director and stockholder of this corporation.
The action here was brought to recover the balance owing on a sub-contract under date of November 6, 1956, pursuant to which plaintiff was to do the carpentry work in connection with the erection of a parish hall in Woodbridge, for which the Roeger firm had the general contract. Plaintiff's complaint, filed on October 31, 1957, named four parties as defendants: the two Roegers, individually, the firm, and the corporation. A deputy sheriff of Camden County, plaintiff contends, delivered a summons to Roeger, Jr., on November 8, 1957 at 644 Haddon Avenue, Collingswood, N.J., the old office of the dissolved C. F. Roeger & Son and present office of the corporation. On this date Roeger, Jr., resided at 345 Haddon Avenue. The sheriff's return of summons, signed by the deputy and filed on November 18, 1957, states that both Roegers and the registered agent of the corporation, William Dickey, Jr., Esq., were "duly served * * * personally" on November 8, 1957. The Roegers were stated to have been served at the 644 address; Dickey, at 122 Haddon Avenue.
None of the defendants answered the complaint, and on December 10, 1957 a judgment by default was entered in plaintiff's favor for $7,136.42, the balance claimed on the sub-contract.
Since January 1958 Roeger, Jr., has been attempting to have the judgment vacated as to him for lack of service.
In March 1958 his motion was denied, the matter having been disposed of upon conflicting affidavits tendered by Roeger, Jr., and the deputy sheriff. Young Roeger then moved for a rehearing on the ground that the facts contained in the affidavits were "diametrically opposed" and, under such cases as Missell v. Hayes , 86 N.J.L. 348 (E. & A. 1914); Vredenburgh v. Weidmann , 14 N.J. Misc. 285, 183 A. 459 (Sup. Ct. 1936), and Romano v. Maglio , 41 N.J. Super. 561, 573 (App. Div. 1956), resolvable only after an oral hearing.
At the oral hearing on April 25, 1958 Roeger, Jr., testified, in addition to the matters previously set forth, that on and for some time prior to November 8, 1957 (when the summons was delivered) he had been employed as a draftsman in an architect's office in Philadelphia; that he had not been present at 644 Haddon Avenue during business hours since September 23, 1957; and that consequently he could not have been served with the summons and complaint as the deputy stated in his affidavit. He testified he knew, from conversations with his father, that plaintiff had filed a complaint, but did not know he had been named as a party defendant until he attended a conference at his attorney's office, shortly after the entry of the default judgment. Roeger, Sr., testified to the same effect, explaining that he was bad on dates and memories and simply had not noticed that the summons handed him on November 8 included his son as a defendant. Upon cross-examination, plaintiff's counsel elicited that the defendant corporation filed a petition in bankruptcy some time in late 1957 or early 1958. The Roegers were the only witnesses to testify on behalf of either side.
The trial judge stated at the end of the hearing that he was "faced with a record" and needed "some rather convincing evidence to overcome that record." He concluded that Roeger, Jr., had failed to sustain the burden of proof and that the judgment would stand. This appeal followed.
"There is conflict of authority on the question of the conclusiveness of a return of process, some authorities holding that
it is conclusive between the parties as to all matters of which the return is evidence, whereas other authorities hold that it may be rebutted or ...