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Santos v. Figueroa

Decided: April 9, 1965.

RAMIRO SANTOS (AND 19 OTHERS), PLAINTIFFS-APPELLANTS,
v.
ANSELMO FIGUEROA, DEFENDANT-RESPONDENT



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

[87 NJSuper Page 229] Plaintiffs, 20 in number, sued defendant for the fraudulent conversion of the sum of $17,460 entrusted by them to him. They had him served with a summons

and complaint in the action, and also with an order for a capias, on September 18, 1963, immediately after his attendance at an arraignment in Jersey City on a criminal charge against him arising out of the same transaction as underlay the civil complaint. At the same time he was arrested pursuant to the capias. On motion by defendant, the process was set aside by the trial court on the ground that defendant was a nonresident of this State who had voluntarily come into the State to attend a judicial proceeding and was consequently immune from service of process at the time and under the circumstances related. Michaelson v. Goldfarb, 94 N.J.L. 352 (Sup. Ct. 1920); Herman v. Arndt, 116 N.J.L. 150 (E. & A. 1936). Plaintiffs appeal.

At the time of rendition of the decision below the law on the subject was as declared by the trial court, supported by the cited decisions. Shortly thereafter the Supreme Court, in Wangler v. Harvey, 41 N.J. 277 (1963), broadly struck down the ancient doctrine of immunity from service of civil process, at least in respect of nonresidents attending civil judicial proceedings in this State as parties, whether as plaintiffs or defendants. Plaintiffs in the present case urge that the rationale of Wangler warrants its application as well to a person coming into New Jersey to answer a criminal charge, his presence in the State not being attended with any abuse of process. They also seek a reversal of the fact-finding by the trial court that defendant was a domiciliary of Illinois rather than of New Jersey when service of process upon him was effected in September 1963.

I.

We consider first the appellate contention that the proofs did not warrant the trial court determination that defendant was a nonresident of New Jersey -- to the contrary, a domiciliary of Illinois -- when served with process here.

Defendant, apparently unmarried, had been a resident of Jersey City for some years prior to June 1963, his last residence

there before departing for Chicago, Illinois, having been with his mother. Defendant testified that at the time of his civil arrest he was temporarily staying with his mother in Jersey City, but that he had previously established a residence in Chicago with a relative, giving the specific address, and had obtained and begun employment with a named business concern in that city. Before moving to Chicago he had turned in some furniture for a debt owing thereon, and when he left Jersey City he took with him all his personal effects.

Plaintiffs urge that the circumstances indicate that defendant left the city solely to abscond from their claims against him and to avoid criminal prosecution therefor. They contend there is no evidence that he never intended to return to Jersey City, and that the proper inference is to the contrary, as all his natural ties were to that city and this State. At the hearing plaintiffs adduced evidence of admissions made by defendant when he first returned to New Jersey to answer the criminal charges, in June 1963, that he resided in Jersey City. However, there was testimony by one of the plaintiffs that defendant had been found by him to be working in Chicago after he left Jersey City and that his automobile bore Illinois license plates.

We conclude that there is insufficient before us to warrant setting aside the fact-finding by the trial judge that defendant changed his domicile from New Jersey to Illinois prior to his service with process in this case. His motive for doing so is immaterial, if in fact his intention was to establish a home in Illinois with the intent of remaining there for the indefinite future. See Gosschalk v. Gosschalk, 48 N.J. Super. 566, 573 (App. Div. 1958), affirmed o.b. 28 N.J. 73 (1958). The objective facts proven in this case were consistent with the legal requirements for a change of domicile, and the implicit determination by the trial judge of the necessary mental state on the part of defendant cannot be said to be so contrary to the evidence as to warrant our redetermination of the factual issue. The finding of defendant's nonresidence is consequently affirmed.


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