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Lemke v. Bailey

Decided: December 16, 1963.

ROSE B. LEMKE AND PERCIVAL E. LEMKE, PLAINTIFFS-RESPONDENTS,
v.
JENNIE D. BAILEY AND WALTER P. D. BAILEY, DEFENDANTS-APPELLANTS



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- Justice Schettino. The opinion of the court was delivered by Haneman, J. Schettino, J. (dissenting).

Haneman

Plaintiffs, both of whom are residents of New Jersey, filed a complaint in the Law Division of the Superior Court on August 21, 1961, seeking recovery of damages allegedly arising from an automobile accident which occurred in this State on October 3, 1958. Service of process on defendants, who are residents of Connecticut, was effected by serving the Director of Motor Vehicles of the State of New Jersey (Director), on September 22, 1961, pursuant to the provisions of N.J.S.A. 39:7-2. The Director, in turn, forwarded notice of such service, together with a copy of the complaint, to defendants, by certified mail on September 23, 1961. N.J.S.A. 39:7-3, subd. a. Defendants filed an answer which pleaded the statute of limitations, N.J.S. 2A:14-2, as a separate defense. The court granted plaintiffs' motion to strike said separate defense, holding that the time limitation provided by N.J.S. 2A:14-2 was tolled by reason of the nonresidency of defendants, N.J.S. 2A:14-22, and was therefore not available to defendants. Defendants appealed to the Appellate Division pursuant to special leave granted, R.R. 2:2-3(a). While the appeal was there pending, the matter was here certified on plaintiffs' motion. R.R. 1:10-1A.

Defendants argue that since they were continuously amenable to service for two years subsequent to October 3, 1958, the date of the accrual of plaintiffs' alleged cause of action, by service upon the Director under N.J.S.A. 39:7-2, the tolling statute, N.J.S. 2A:14-22, is inapplicable. They conclude that plaintiffs are barred, suit not having been instituted within two years after the accrual of their cause of action. N.J.S. 2A:14-2. Defendants further argue that a contrary decision would deprive them of the equal protection of the law and hence be unconstitutional under Article

1, paragraphs 1 and 5 of the New Jersey Constitution, and the Fourteenth Amendment of the United States Constitution.

It is admitted that N.J.S. 2A:14-2 (formerly R.S. 2:24-2) applies to plaintiffs' cause of action which would be barred but for the tolling provisions of N.J.S. 2A:14-22. We are concerned, therefore, with the construction of the latter statute.

The tolling statute, presently designated N.J.S. 2A:14-22, had its genesis in an enactment of the Council and General Assembly of New Jersey on February 21, 1820. Pennington, Laws of New Jersey, 1703-1820, p. 670 (1821). It remained substantially in its original form until 1949. In that year it read as follows:

"If any person against whom there is or may be a cause of action specified in sections 2:24-1, 2:24-2, 2:24-3, 2:24-5, 2:24-6, 2:24-16 or 2:24-17 of this title is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, the time or times during which said person is not residing within this state shall not be computed as a part of the periods of time within which such actions are required to be commenced by said sections; and the person entitled to any such action may commence the same after the accrual of the cause therefor, within the periods of time limited therefor by said sections, exclusive of such time or times of nonresidence." R.S. 2:24-7.

By L. 1949, c. 125, it was amended to read:

"If any person against whom there is or may be a cause of action specified in sections 2:24-1, 2:24-2, 2:24-3, 2:24-5, 2:24-6, 2:24-16 or 2:24-17 of this Title is not a resident of this State when such cause of action accrues, or removes from this State after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation not organized under the laws of this State, against whom there is or may be such a cause of action, is not represented in this State by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person is not residing within this State or such corporation is not so represented within this State shall not be computed as part of the periods of time within

which such actions are required to be commenced by said sections; and the person entitled to any such action may commence the same after the accrual of the cause therefor, within the periods of time limited therefor by said sections, exclusive of such time or times of nonresidence or nonrepresentation."

In 1950 bill S-163, introduced in the New Jersey Senate, sought to amend R.S. 2:24-7 (now N.J.S. 2A:14-22) to make the tolling statute inapplicable to nonresident motorists subject to service via the Director of the Division of Motor Vehicles, by adding the following paragraph:

"The provisions of this section shall not apply to any cause where a person or corporation is subject to service of process under section 39:7-2 of the Revised Statutes, but in any such case the taking effect of this amendatory act shall not preclude the bringing of an action on a cause now existing until the expiration of a period of one year from the effective date of this amendatory act."

This bill was amended by the Senate Committee on Revision and Amendment of Laws so that its final form contained the following clause which was ...


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