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Zander v. Martine

Decided: March 8, 1961.

RAYMOND ZANDER, PLAINTIFF,
v.
JOHN H. MARTINE AND JOHN MARTINE, DEFENDANTS



Barger, J.c.c.

Barger

[66 NJSuper Page 311] This is an automobile negligence action in which the plaintiff is seeking damages for personal

injuries and property damage. The plaintiff alleges that on September 1, 1959 a motor vehicle owned and operated by the plaintiff was stopped at the intersection of Morrell Street and East Jersey Street, Elizabeth, New Jersey, and was struck in the rear by a motor vehicle operated by defendant John Martine, of 1065 East Jersey Street, Elizabeth, New Jersey, and owned by defendant John H. Martine, of Knappernich Manor, Genoa City, Wisconsin.

This action was instituted on February 1, 1960, and a summons and complaint forwarded to the Sheriff of Union County for service upon defendant John Martine at the address in this State above indicated. Also on the same date a summons and complaint was forwarded to the Director of the Division of Motor Vehicles under the provisions of N.J.S.A. 39:7-2 for substituted service upon defendant John H. Martine, a nonresident owner and residing at the address above indicated, to be served in the manner as required by N.J.S.A. 39:7-3.

On February 8, 1960 the Sheriff of Union County notified the attorney for plaintiff, "Deputy reports the defendant, John Martine, has moved to Florida about a year ago." On February 26, 1960 the Sheriff of Union County was furnished with a copy of the summons and complaint by the attorney for plaintiff and a request was made to serve the same on the Director as agent of defendant under the provisions of N.J.S.A. 39:7-2.1, as substituted service upon defendant John Martine, as the plaintiff had secured information that this defendant, formerly a resident, was then a nonresident and was residing at 200 West 53rd Terrace, Hialeah, Florida, P.O. Box 2342, Miami, Florida. On March 31, 1960 the Director notified the attorney for plaintiff that the certified mail containing the summons and complaint addressed to defendant John Martine, the operator, had been returned marked, "Sent to John Martine, 200 West 53rd Terrace, Hialeah, Florida, P.O. Box 2342, Miami, Florida, and forwarded to Colony Beach Club, Lido Beach, L.I., N.Y., moved and unclaimed." No

further attempts to serve this nonresident defendant were made.

On February 16, 1960 the Director notified the attorney for the plaintiff that the certified mail containing the summons and complaint forwarded to defendant John H. Martine, the owner, at the address indicated, had been returned marked, "Moved, left no address." No further attempts to serve this nonresident defendant were made.

Thereafter, on April 26, 1960, a default was entered by the clerk of this court at the request of plaintiff against both defendants.

On January 9, 1961 the matter was presented to the court at the request of plaintiff, after notice to the Fund hereinafter referred to, for the assessment of damages.

As a result of a notice to the Unsatisfied Claim and Judgment Fund Board by plaintiff, under N.J.S.A. 39:6-74, and in contemplation of a claim against the Fund for the amount of any judgment, and in furtherance of such notice and in behalf of the Fund and defendants, an attorney appeared for the Board, as authorized under N.J.S.A. 39:6-75, and objected to the default entered and to any assessment of damages thereunder, on the legal ground that the court did not have jurisdiction of defendants in that they had never been served in the action, as contemplated by the sections of the statute referred to and in compliance therewith. The matter was argued by consent and it is the contention of the plaintiff that service upon the Director in the manner indicated, as the agent of defendants, under the sections of the statute herein cited, is substituted service, as the Director is designated their agent for the purposes of such service and the court does have jurisdiction over defendants and can render a personal judgment against them irrespective of whether any notice is actually received by defendants.

N.J.S.A. 39:7-2 makes the Director of the Division of Motor Vehicles the agent for the acceptance of service of process, in any civil ...


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