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A & S Manufacturing Co. v. Wetzler

Decided: June 15, 1970.

A & S MANUFACTURING CO., INC., A NEW YORK CORPORATION, PLAINTIFF,
v.
RICHARD WETZLER AND PAUL SMITH, DEFENDANTS



Mountain, J.s.c.

Mountain

The question before the court is whether defendant Richard Wetzler was properly served in this action. Service was pursuant to R. 4:4-4(a), which permits service upon an individual "by leaving a copy [of the summons and complaint] at his dwelling house or usual place of abode * * *" (emphasis added).

Substituted or constructive service is in derogation of the general common law requirement that there be personal service. Kurilla v. Roth , 132 N.J.L. 213, 216 (Sup. Ct. 1944); Eckman v. Grear , 14 N.J. Misc. 807, 809 (C.P. 1936); 42 Am. Jur., Process , § 61 (1942). Statutes or rules of court providing for such service must be strictly construed and fully carried out in order to confer jurisdiction. Id. The italicized words above have a more restricted meeting than either residence or domicile. Eckman v. Grear, supra , at 809-810; Mygatt v. Coe , 63 N.J.L. 510, 511-512 (Sup. Ct. 1899); 42 Am. Jur., supra. They mean the place where the defendant is "actually living" at the time when service is made. Id; Feighan v. Sobers & Son , 84 N.J.L. 575, 576 (Sup. Ct. 1913) affirmed 86 N.J.L. 356 (E. & A. 1914); Sweeny v. Miner , 88 N.J.L. 361, 364 (E. & A. 1915); Warfield v. Fischer , 94 N.J. Super. 142, 146 (Law Div. 1967); Fidelity Deposit Co. v. Abagnale , 97 N.J. Super. 132, 145 (Law Div. 1967).

New Jersey has a long line of cases dealing with the sufficiency of substituted service at the "dwelling house or usual place of abode." E.g., Mygatt v. Coe; Feighan v. Sobers & Son; Sweeny v. Miner; Eckman v. Grear; and Kurilla v. Roth , all supra; Missell v. Hays , 84 N.J.L. 196 (Sup. Ct. 1913), affirmed 86 N.J.L. 348 (E. & A. 1914); Vredenburgh v. Weidmann , 14 N.J. Misc. 285 (Sup. Ct. 1936); Warfield v. Fischer, and Fidelity Deposit Co. v. Abaganale, supra. Three familiar fact patterns have developed:

(1) cases involving members of the military (Eckman v. Grear and Kurilla v. Roth, supra); (2) cases involving college students (Missell v. Hays, Vredenburgh v. Weidmann and Warfield v. Fischer, supra); (3) those involving persons incarcerated in penal institutions (Fidelity Deposit Co. v. Abagnale, supra). In Warfield v. Fischer, supra , however, the court explicitly stated that the distinction is not between absence at school and absence because of military duty and, it might be added, absence because of incarceration, that is determinative. Rather, there is a basic consideration underlying the differing factual patterns. That is:

The design of provisions for * * * substituted service is to afford the defendant actual notice of the action in time to make [a] defense * * *. The principle of reasonable notice is of the essence. * * * the sufficiency of the statutory substitute for personal service depends upon whether it is reasonably calculated to provide the defendant with notice of the action or proceeding and an opportunity to be heard. [ Kurilla v. Roth, supra , 132 N.J.L. at 216]

Thus, the likelihood of prompt notice of the suit to defendant is the justification for permitting the substituted service. Warfield v. Fischer, supra , 94 N.J. Super. at 147.

Consequently, in their consideration as to whether there has been service at the "dwelling house or usual place of abode" courts have looked at certain objective factors that implicitly recognize this requirement. They have considered whether there is a "setting of familial disorganization" (Fidelity Deposit Co. v. Abagnale, supra , 97 N.J. Super. at 146), e.g. , incarceration in a penal institution, or marital discord (Berryhill v. Sepp , 106 Minn. 458, 119 N.W. 404 (Minn. Sup. Ct. 1909); whether there is a regular pattern of residence at the place where service has been made (compare Warfield v. Fischer, supra , with Feighan v. Sobers & Sons, supra); whether the dwelling where service is made is occupied at the time of service (Mygatt v. Coe, supra; Sweeney v. Miner, supra , 88 N.J.L. at 363-364) and whether the defendant has removed his personal belongings from the dwelling place (Eckman v. Grear, supra , 14 N.J.

Misc. at 808; but see Kurilla v. Roth, supra , 132 N.J.L. at 217) in determining whether the defendant was "actually living" at the dwelling when service was made.

In the case of a married man, as here, the house where his wife and family resides is prima facie or presumptively his "dwelling house or usual place of abode." Holtberg v. Bommersbach , 236 Minn. 335, 52 N.W. 2d 766 (Minn. Sup. Ct. 1952); 42 Am. Jur., Process , § 61. The presumption, however, is one of fact and not of law, and may be rebutted. Id.

Where a person had been a Minnesota resident, but left six hours before service and was en route to another state where he intended to commence work and establish a permanent domicile, the Supreme Court of Minnesota held his "usual place of abode" was still his Minnesota house wherein his wife continued to reside in order to complete moving arrangements. Walker Employment Service, Inc. v. Swanson , 278 Minn. 368, 154 N.W. 2d 823 (1967). In the case ...


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