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Warfield v. Fischer

Decided: February 27, 1967.

ROBERTA LOUISE WARFIELD, PLAINTIFF,
v.
ALFRED A. FISCHER, DEFENDANT



Fulop, J.s.c.

Fulop

Defendant moves to quash the service of the summons in this case and also to dismiss the complaint.

The motion to set aside the service of the summons is based upon the position that service was not made at defendant's dwelling house or usual place of abode as provided in R.R. 4:4-4(a). A copy of the summons and complaint was left at the home of defendant's parents in Summit, New Jersey, with his mother. Defendant was then and is now in Germany studying at a University for an advanced degree.

Depositions have been taken of defendant's father and mother, from which the following facts appear.

Defendant was born on January 6, 1943, in Orange, New Jersey. He attended elementary school and high school in Summit and enrolled at the University of Rochester in 1961. At the end of his third year at college in 1964 he went abroad for a summer of study in Germany. He returned in the fall of 1964, and was graduated from the University of Rochester in 1965. On September 5, 1965 he again went to Germany to study. He has remained in Europe and away from the home of his parents in Summit, New Jersey, up to the present time. He is studying for a doctorate. He plans to teach and has disclosed no plans as to where he will live after the completion of these studies expected to take several years.

A room is available to defendant at the home of his parents in Summit. Some of his possessions such as books remain there. His parents support him and pay for his advanced schooling. He has registered to vote in New Jersey. However, he has not been here since September 1965.

The present suit is for personal injuries allegedly suffered by plaintiff while she was a passenger in defendant's automobile in Germany on July 30, 1964. The plaintiff is a

resident of Baltimore, Maryland. The suit was instituted on July 5, 1966, and service made as aforesaid on July 13, 1966.

The type of service of process employed in this case is not personal service. It is substituted service. Where the copy of the summons and complaint is delivered to a defendant himself within the territorial jurisdiction of the State, it is immaterial where defendant lives or is domiciled. But where, as here, the process is delivered to some person other than defendant, the service is effective to obtain in personam jurisdiction over him only if the service complies with the legal requirements. Cf. Ammond v. Lafayette, 63 N.J. Super. 86 (App. Div. 1960).

R.R. 4:4-4 (a) provides for service as follows:

"(a) Upon an individual other than an infant under 14 years of age or an incompetent person, by delivering a copy of the summons and complaint to him personally; or by leaving a copy thereof at his dwelling house or usual place of abode with some competent member of his family of the age of 14 years or over then residing therein; or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on his behalf; * * *."

The issue here is whether the home of defendant's parents in Summit was his "dwelling house or usual place of abode" at the time when ...


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