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Kappish v. Lotsey

Decided: August 30, 1962.

JOSEPH KAPPISH, PLAINTIFF,
v.
WILLIAM LOTSEY, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. LLOYD MCCREA AND WILLIAM MCCREA, THIRD-PARTY DEFENDANTS



Bry-Nildsen, J.d.c.

Bry-nildsen

[76 NJSuper Page 218] Plaintiff Kappish instituted a negligence action in the Warren County District Court against defendant Lotsey, who was personally served within

Warren County. Defendant Lotsey defaulted. With consent of plaintiff, the default was set aside, whereupon defendant Lotsey entered his appearance and demanded a jury trial. Then, pursuant to R.R. 4:14, defendant Lotsey applied for and obtained an order permitting the filing of a third-party complaint wherein defendant Lotsey alleged that two third parties defendant, Lloyd McCrea, as owner, and William McCrea, as operator of a motor vehicle, were guilty of negligence which proximately caused the damages alleged by plaintiff Kappish, and that in the event of a determination that defendant third-party plaintiff Lotsey was chargeable with negligence proximately causing the plaintiff's damages, the third-parties defendant were also negligent and liable for the same, and in such event the third-parties defendant would be liable under N.J.S. 2A:53A-1 et seq. , to the defendant third-party plaintiff for a contribution for their proportionate share of any amount paid by the defendant third-party plaintiff.

It appears that both third parties defendant are residents of Alexandria Township, Hunterdon County. Defendant third-party plaintiff, nevertheless, pursuant to N.J.S. 2A:6-33, caused third-parties defendant to be personally served at their Hunterdon County residence with copies of the third-party summons and complaint, by Ralph W. Bird, Undersheriff of Hunterdon County, on May 22, 1962.

Upon due notice, third-parties defendant McCrea appeared specially before the Warren County District Court and moved to set aside the service of the third-party summons and complaint on the ground that such service was invalid since it was not effected within the territorial jurisdiction of the Warren County District Court.

The question presented upon the motion is whether or not third-parties defendant are defendants within the purview of N.J.S. 2A:6-33, and more particularly, whether or not they may be treated as co-defendants with the original defendant vis-a-vis the original plaintiff, for the purpose of

extending what would otherwise seem to be the territorial jurisdiction of the court as provided in N.J.S. 2A:6-32.

Though counsel submitted able memoranda of law and presented articulate oral arguments, neither their research, nor that of the court disclosed any reported decision on the point.

The defendant third-party plaintiff relies upon the provisions of N.J.S. 2A:6-33 which provides:

"In any action brought in any county district court in this state against 1 or more defendants upon whom summons can be served within the county and against any additional defendant or defendants upon whom summons cannot be served within the county, the summons and complaint may be served in any other county of this state upon such additional defendant or defendants by any officer authorized to serve a summons issuing out of the county district court of that county. Service of such summons and complaint by such officer shall be as effectual to bring said additional defendant or defendants into court as though the same were served within the county in which the county district court issuing such summons is located."

The source of this section appears to be N.J.S.A. 2:8-38.1 (L. 1949, c. 142, sec. 1), effective May 19, 1949. This was one of a series of acts by which the Legislature, following the District and Municipal Court Act of 1948 (L. 1948, c. 264, p. 1145, effective January 1, 1949) apparently sought to adapt the district court and its procedures to the new practice.

Third-parties defendant McCrea rely principally upon the respected authority of Judge Ervin S. Fulop, who, in 17 New Jersey Practice, sec. 153, pp. ...


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