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James v. Francesco

Decided: October 16, 1972.

BETTY ALLISON JAMES, PLAINTIFF-RESPONDENT,
v.
PHILIP J. FRANCESCO, DEFENDANT-APPELLANT



For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. For affirmance -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.

Conford

In 1965 plaintiff was injured in a motor vehicle accident in North Carolina, and two years later she obtained a default judgment in that state against defendant, a New Jersey resident, and two others, in the sum of $9,417.36 for personal injuries and property damage. Defendant, who was not the driver of any car involved, was served by mail in New Jersey by the North Carolina Commissioner of Motor Vehicles under the purported authority of the North Carolina non-resident motorists statute. N.C.G.S. §§ 1-105 to 1-106. Plaintiff then instituted the present action in the Superior Court, Law Division, on the North Carolina judgment.

The trial court refused to allow defendant to attack the North Carolina judgment for lack of personal jurisdiction over him, holding that such an attack could only be made before the North Carolina Court and that New Jersey would entertain an assault on the foreign judgment only in the case of fraud. The court consequently rendered judgment for plaintiff in May 1970 and defendant timely appealed.

Four months later the Appellate Division, on its own motion, dismissed the appeal for failure to prosecute. Defendant then retained a different attorney, who, after ascertainment of the facts and obtaining the papers from the first attorney, moved to reinstate the appeal. The Appellate Division denied this motion and defendant petitioned this Court for certification.

Oral argument on the petition for certification was held on October 26, 1971, and at that time the parties were instructed to submit supplemental briefs as to whether registration of the vehicle in defendant at the time of the accident*fn1 was sufficient to vest jurisdiction over him in the North Carolina courts and as to when title to the motor vehicle passed under New Jersey law. The court thereafter granted

certification, 59 N.J. 526 (1971), and directed the parties to file further briefs on the issues as to whether full faith and credit had to be accorded to the North Carolina judgment and whether defendant was required to seek any relief to which he might be entitled on jurisdictional grounds in the North Carolina courts.

Although, when the petition for certification was first brought before the court, the narrow issue presented was the justification for the Appellate Division's failure to grant the motion to restore the appeal to the calendar, it is apparent from the foregoing recital that the court deemed that issue affected by the probable merits of the appeal. By thus expanding the area of inquiry we have gained an insight into the legal and factual issues involved on the merits, and the parties have had full opportunity to be heard thereon. For reasons to be stated hereinafter we conclude that the appeal does have substantial merit. Moreover, without need here to state all the pertinent details, it is clear to us that defendant was egregiously misrepresented by his first attorney on the appeal. Suffice it to say that whereas there was a good case to be made on the appeal the attorney, although paid an appeal retainer, defaulted on his obligation to file a brief, and, after being notified that the appeal had been dismissed for lack of prosecution, concealed that fact from defendant and merely informed him that it would be advisable for him to obtain more experienced counsel. Substituted counsel for defendant filed an application to reopen together with a proposed appeal brief with the Appellate Division as soon as he reasonably could after some delay in obtaining the suit papers from the first attorney.

In such circumstances of probable merit and serious default of representation by the first attorney a proper case for relaxation of the rules is presented in order to subserve the first objective of the rules of practice -- the accomplishment of substantial justice on the merits. See Gnapinsky v. Goldyn, 23 N.J. 243 (1957); Paxton v. Misiuk, 34 N.J. 453 (1961). The order of the Appellate Division denying

the motion to reinstate the appeal is reversed and the appeal is reinstated.

Since the merits of the appeal have been fully briefed and argued in this court we proceed to a consideration thereof rather than remand the appeal for disposition by the Appellate Division.

We hold, first, that the trial court erred in ruling that defendant was precluded from attacking in New Jersey the validity of the North Carolina judgment for lack of in personam jurisdiction over him. Plaintiff supports that ruling by invoking the Full Faith and Credit Clause of the United States Constitution, Art. IV, § 1. But the law is clearly to the contrary. That provision applies only where the judgment of the foreign state is "founded upon adequate jurisdiction of the parties and subject matter." Klaiber v. Frank, 9 N.J. 1, 10 (1952); Restatement 2d, Conflict of Laws, §§ 104, 105, pp. 315-316 (1969). A judgment is void if there has been a failure to comply with a requirement which is a condition precedent to the exercise of jurisdiction by the court. Restatement, Judgments, § 8, comment b, pp. 46-47 (1942). A judgment which is void is subject to ...


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