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Mackay v. Avison

Decided: January 9, 1964.

DAVID MACKAY, PLAINTIFF-RESPONDENT,
v.
MARSHALL AVISON AND GEORGE MARSHALL AVISON, HIS FATHER, DEFENDANTS-APPELLANTS



Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.

Freund

[82 NJSuper Page 94] By order of the Appellate Division defendants were granted leave to appeal an interlocutory order of the Superior Court, Law Division, Ocean County, denying their motion to dismiss the service of process made upon them.

Marshall Avison is the son of George Marshall Avison. Both reside in Norwalk, Connecticut. Plaintiff also resides in Norwalk. On July 3, 1963 plaintiff filed a complaint in the Superior Court, Law Division, Ocean County, alleging that in August 1961 he and the two Avisons were "in the surf" at Island Beach State Park in New Jersey, and that young Marshall negligently collided with him, thereby inflicting personal injuries upon him. Plaintiff further alleged that the elder Avison was negligent in failing to exercise control over his son in order to prevent such an occurrence.

Defendants were served with summons and complaint in Connecticut on July 8, 1963. At this time Marshall was 14 years of age. He and his father acknowledged service by signing their respective summonses before one Walter J. Cullen, who allegedly was a notary public of Connecticut. Acceptance of the service of a summons, when signed and acknowledged by a defendant, is as effective as proper service, R.R. 4:4-6, and may constitute a waiver of defects in the acquiring of jurisdiction over his person. See 2 Schnitzer and Wildstein, N.J. Rules Service , A IV-68-69. Cf. Allen B. Du Mont Labs., Inc. v. Marcalus Mfg. Co. , 30 N.J. 290, 302-303 (1959). The acknowledgment failed to include, however, a certification that Cullen was in fact a notary public authorized to take acknowledgments in the State of Connecticut. Such certification was necessary to validate the acknowledgments. See R.S. 41:2-17.

In lieu of filing an answer defendants moved, pursuant to R.R. 4:12-2, to dismiss the service of process on the grounds of lack of jurisdiction over their persons, insufficiency of process and of service of process. Plaintiff then filed a cross-motion to amend the proof of service to indicate the authority of Cullen, and presented an affidavit of the County Clerk of Fairfield County, Connecticut, that on July 8, 1963 "Walter J. Cullen was a Notary Public authorized to take acknowledgments in the State of Connecticut." The judge before whom these motions were argued determined that the deficiency in the acknowledgments was "merely one of form"

and was cured by the affidavit of the Fairfield County Clerk. He decided also that service upon young Marshall was valid.

Do the New Jersey courts, by virtue of these two acknowledgments, have in personam jurisdiction over these nonresident defendants who were served in Connecticut, their home state? Traditionally, the primary foundation upon which such jurisdiction rests is the physical presence of the defendant in the state where suit is brought. See generally, "Developments in the Law -- State-Court Jurisdiction," 73 Harv. L. Rev. 909, 937-38 (1960); see Restatement, Judgments , § 15, pp. 81-83 (1942). Domicile in that state is sufficient, however, to support in personam jurisdiction even if the defendant is not served within its borders, provided always that notice consistent with due process was given. Milliken v. Meyer , 311 U.S. 457, 462-463, 61 S. Ct. 339, 85 L. Ed. 278 (1940); see also McDonald v. Mabee , 243 U.S. 90, 92, 37 S. Ct. 343, 61 L. Ed. 608 (dictum); Restatement, Judgments , § 16, pp. 83-84 (1942). It is obvious that neither of these bases of in personam jurisdiction is applicable in the present case.

It is a well settled rule that the in personam jurisdiction of this State does not extend beyond its own borders. Yedwab v. M.A. Richards Corp. , 137 N.J.L. 448, 450 (Sup. Ct. 1948). See also A. & M. Trading Corp. v. Pennsylvania R. Co. , 13 N.J. 516, 525 (1953); Westerdale v. Kaiser-Frazer Corp. , 6 N.J. 571, 576 (1951). To this rule there are some exceptions, engrafted upon our law by statute. For example, in personam jurisdiction may be achieved over a nonresident defendant by substituted service where (1) the defendant employs one or more persons to perform work, labor or services in New Jersey, N.J.S.A. 34:15-55.1; (2) the defendant is a foreign corporation authorized to do business within this State, N.J.S. 2A:15-26; (3) a defendant motorist has used the highways of New Jersey, R.S. 39:7-1 et seq.; and (4) the defendant or his agent or servant operates aircraft "over the land or waters or through the air space of this State," N.J.S.A. 6:5-3. We have no statute,

as does Illinois, which provides that a nonresident submits his person to the jurisdiction of our courts merely by his commission of a tortious act within our borders. See 110 Ill. Ann. Stat. § 17(1)(b).

Since none of the above cited New Jersey statutes applies to either of the defendants, they are not subject to an in personam action in this State, see Yarborough v. Slokum , 130 N.J.L. 565, 566-567 (E. & A. 1943), absent their consent to be sued here. Of course, consent by a nonresident to a suit in a foreign jurisdiction is a valid basis for a personal judgment against him, though none of the other requirements for in personam jurisdiction is present. Battle v. General Cellulose Co. , 23 N.J. 538, 546 (1957); Restatement, Judgments , § 18, pp. 86-87 (1942). And of course this is the very ground upon which plaintiff seeks to subject defendants to suit in the present case. But it is important to note that absent their consent, the validity of which defendants now deny, there would be no possible way in which plaintiff could continue the present suit notwithstanding the fact that defendants received actual notice thereof at their place of residence. Redzina v. Provident Institution, etc. , 96 N.J. Eq. 346, 348 (E. & A. 1924). This is particularly significant in the case of young Marshall, for it indicates the necessity of his making an important decision, viz. , whether or not to subject himself to a suit in a jurisdiction other than that of his domicile. A similar kind of problem would arise if a 14-year-old infant, resident of New Jersey, undertook to acknowledge service of process at a time when he was temporarily out of the State.

In sustaining the acknowledgment of service by the infant Marshall, the trial judge reasoned that R.R. 4:4-6, providing that "a general appearance or an acceptance of the service of a summons * * * signed and acknowledged by the defendant, shall have the same effect as if the defendant had been properly served," must be read together with R.R. 4:4-4(a), which permits ...


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