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Roth v. Jackson

Decided: March 13, 1968.

ARLENE E. ROTH AND DONALD ROTH, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
ROY JACKSON AND MARION JOHNSON, JR., DEFENDANTS. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT-APPELLANT



Sullivan, Foley and Leonard. The opinion of the court was delivered by Sullivan, S.j.a.d.

Sullivan

[99 NJSuper Page 547] This appeal involves the issue of whether service of process in a county district court action can be made upon a defendant who is a resident of this State by registered mail, addressed to his dwelling house or usual place of abode in this State, where it appears that despite

diligent inquiry and effort defendant cannot be served personally at such address.

As a result of a two-car automobile accident, plaintiffs Donald Roth, the owner of one of the vehicles, and his wife Arlene, who was a passenger at the time, commenced an action in the Passaic County District Court against defendant Johnson, alleged to be the driver, and defendant Jackson, alleged to be the owner, of the other car. After process issued, the return of service shows that Johnson could not be found at the address given. The return also states that the process server was unable to serve Jackson. The docket lists Jackson's address as 123 Spring Street, Paterson.

An affidavit was then filed by counsel for plaintiffs setting forth the following:

"* * * 2. On August 10, 1966 summons and complaint in this cause was forwarded to the Clerk of the Court for service, which service was directed to Vincent Ranieri, Sergeant-at-arms of said Court.

3. We have been advised by said Sergeant-at-arms that he cannot effect service upon defendant, Roy Jackson, either at his home or place of employment, and that he has left numerous messages but same have been disregarded.

4. Pursuant to R. 4:4-4 J, we authorize the Clerk of the Court to effect service upon said Roy Jackson, either at his home or place of employment, by certified mail, return receipt requested."

Court records show that thereafter the summons was reissued for service on Jackson by registered mail. The return shows "Summons and Complaint served Sept. 13, 1966 on Deft. Roy Jackson personally, Rec'd by James Owens, Reg. Mail." Presumably, it was mailed to the address shown on the docket, supra. When no appearance was made by defendant a default was entered.

The Unsatisfied Claim and Judgment Fund Board (Board), having received a notice of intention to file claim pursuant to N.J.S.A. 39:6-65, assigned the defense of the action to counsel who obtained an order vacating the default. Counsel for the Board then moved to vacate the service made on defendant Jackson on the ground that "service was improperly

effected on the defendant, having been made by registered mail contrary to the rules."

After hearing argument the trial court denied the motion, holding that service of process can be made by registered mail upon a defendant who is a resident of this State, addressed to his dwelling house or usual place of abode in this State, under R.R. 4:4-4 (j), where it appears that despite diligent inquiry and effort, he cannot be served ...


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