Conford, Michels and Pressler. The opinion of the court was delivered by Conford, P.J.A.D.
[153 NJSuper Page 401] Defendant appeals her conviction for drunken driving on two grounds: (1) that there was an absence of territorial jurisdiction in the municipal courts involved in the prosecution, and (2) that her sentence of three months in the county jail, which was mandatory (for
a second offense committed within ten years) under the applicable statute in effect when the driving and the convictions took place, should be modified to accord with the more lenient discretionary penalty provisions of the statutory revision enacted by L. 1977, c. 29. We find ourselves unable to agree with either contention.
The offense took place November 21, 1975 in the Township of Eagleswood (Ocean County) which did not at that time have a municipal court. The summons issued by the State Police to defendant was captioned in the Municipal Court of the Borough of Tuckerton. That court being without the territorial jurisdiction required for courts hearing complaints of motor vehicle violations under N.J.S.A. 2A:8-21(a), it transferred the case to the Municipal Court of the Township of Little Egg Harbor, which adjoins Eagleswood township, and whose court therefore had jurisdiction over offenses occurring in Eagleswood. N.J.S.A. 2A:8-20. Thereafter, in March 1976, a municipal court was established in the latter municipality. The case was consequently transferred to that court, where defendant was convicted July 20, 1976 of drunken driving as well as of driving while on the revoked list. There is no present question of defendant's guilt of the charges, which was clearly established by the evidence. Having been previously convicted of the same offense in 1969, defendant was sentenced on the drunken driving charge to three months in the county jail, to be served week-ends, and to a suspension of driving privileges for 10 years. These penalties were mandatory under N.J.S.A. 39:4-50(a).
On November 24, 1976 defendant was tried de novo in the Ocean County Court on the municipal court transcript, and on December 23, 1976 defendant was again found guilty and the same penalties were imposed. The sentence has been stayed pending appeal.
The transfers to the Little Egg Harbor and Eagleswood municipal courts were made under the authority of R. 1:13-4(a) which provides:
Subject to the right to be prosecuted by indictment, if any court is without jurisdiction of the subject matter of an action or issue therein or if there has been an inability to serve a party without whom the action cannot proceed as provided by R. 4:28-1, it shall, on motion or on its own initiative, order the action, with the record and all papers on file, transferred to the proper court, if any, in the State. The action shall then be proceeded upon as if it had been originally commenced in that court.
The rule was patently applicable here. Defendant argues to the contrary, however, on the basis that the Tuckerton court was not without "subject matter" jurisdiction but rather without "territorial" jurisdiction, in which situation, so goes the contention, the power to transfer under the rule is absent. The distinction drawn has no substance, at least for present purposes. There is no reason to believe that the intent of the rule, which tracks the language of "The Transfer of Causes Act," L. 1912, c. 233, see In re Old Colony Coal Co. , 49 N.J. Super. 117, 124-125 (App. Div. 1958), in its reference to subject matter jurisdiction, was not comprehensive enough to include absence of territorial jurisdiction. Obviously the salutary object of preventing the miscarriage of an action or proceeding because instituted in the wrong court is as applicable where the jurisdictional defect is lack of territorial jurisdiction as in case of any other kind of subject matter deficiency. Compare State v. Henry , 56 N.J. Super. 1, 10-11 (App. Div. 1959); State v. Vreeland , 53 N.J. Super. 169, 173-174 (App. Div. 1958).
Defendant also cites In re Old Colony Coal Co., supra , for the proposition that a court without subject matter jurisdiction is powerless to take any step whatever in the cause, even to transfer it to a court possessing jurisdiction. But the case by no means so holds. It decides only that a court without subject matter jurisdiction may not make a determination
having substantive effect on the rights of the parties. 49 ...