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Doyley v. Schroeter

Decided: May 25, 1983.

MARIE DOYLEY AND PAUL DOYLEY, PLAINTIFFS,
v.
GLORIA C. SCHROETER, ROBERT F. SCHROETER, AUGUST E. SCHNEIDER AND SUBURBAN TRANSIT CORP., DEFENDANTS, AND GLORIA C. SCHROETER AND ROBERT F. SCHROETER, THIRD PARTY PLAINTIFFS, V. STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, THIRD PARTY DEFENDANT



Lenox, A.j.s.c.

Lenox

[191 NJSuper Page 122] Plaintiffs laid venue in the county of their residence in accordance with R. 4:3-2(a)(3). The State of New Jersey, Department of Transportation was joined as third party defendant and filed this motion to change venue. The State contends that since the accident giving rise to this litigation occurred in Middlesex County, venue must be in that county under R. 4:3-2(a)(2) which places venue in actions against a governmental body, agency or official in the county in which the cause of action arose. Although public bodies joined in litigation by amended or third party pleadings routinely present similar motions,

the issue raised has not been decided in any reported decision in this State.

The applicable language of the rule reads:

Venue shall be laid by the plaintiff in Superior Court actions as follows: . . . (2) actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose . . .

While the rule refers to "municipal corporations, counties and public agencies or officials" and contains no reference to the State, it is clear that it applies "to entities having a statewide presence as opposed to a local presence, e.g., municipalities, counties and local agencies," Nugent v. Sagner, 151 N.J. Super. 189, 199 (App.Div.1977), and applies to the State, its agencies and officers.

The cases upon which the State relies, such as Engel v. Gosper, 71 N.J. Super. 573 (Law Div.1962), are inapposite to the issue. They are authority only for the principle enunciated in the rule, that when a public entity or official is named as a defendant in the complaint venue must be laid by plaintiff in the county in which the cause of action arose. The rule is clear in this respect and is mandatory. Countrywood Estates v. Donnelly, 42 N.J. Super. 456 (App.Div.1956). The question here confronted is whether the rule continues to be applicable in its requirement after venue has been laid properly in a county other than that where the cause of action arose, and thus mandates a change of venue when a public body, agency or official later becomes a party to the litigation.

Venue is not a jurisdictional question but a procedural one. The Superior Court has "original general jurisdiction throughout the State in all causes," N.J. Const. (1947), Art. VI, § III, par. 2; State v. Barr, 110 N.J. Super. 365, 369 (App.Div.1970), and but for the dictate R. 4:3-2 venue in every case could be laid in any county. Our rules of venue had their genesis in the English common law where jurors were presumed to have knowledge of both the parties and the facts of the case. In theory they were witnesses summoned to decide the controversy and so a plaintiff

was limited in his venue to the locality where the jurors resided and the activities occurred which gave rise to the suit. 77 Am.Jur. 2d, Venue § 2 at 833; Note, 16 Rut.L.Rev. 784 (1962). Under our former practice venue was governed by statutory provisions. Upon the establishment of this court of statewide jurisdiction, the Supreme Court under its broad rule-making power restricted the exercise of that jurisdiction by establishing criteria for determination of the county of venue. R. 4:3-2. The mandatory nature of the rule was, however, tempered by the enactment of another rule authorizing a change of venue under specified findings and within the sound discretion of the court. R. 4:3-3; Cf. State v. Collins, 2 N.J. 406, 411 (1949); see also 92 C.J.S., Venue, § 135 at 838.

The requirement of R. 4:3-2(a)(2) has a sound basis in logic. Often the cause of action in a case involving a public body or official arises in the county where the governmental unit is located. Ordinarily the witnesses, documents, public officials and counsel are there. The rule expresses "strong policy considerations not to be lightly disregarded." Diodato v. Camden Cty. Park Comm'n., 136 N.J. Super. 324 (App.Div.1975).

More recent decisions have indicated that the convenience of public bodies and officials is to be heavily weighed when questions regarding venue are at issue. Engel v. Gosper, 71 N.J. Super. 573, 581-582 (Law Div.1962). See Nugent v. Sagner, 151 N.J. Super. 189 (App.Div.1977). The public interest would not be well served if the duties of public officials were disrupted or left unattended while they were forced to defend actions brought against them in distant counties which have little or no connection with the conduct that forms the basis of the suit. [ Sinderbrand v. Schuster, 170 N.J. Super. 506, 511 (Law Div.1979)]

The policy considerations underlying the rule do not change the language. The rule is specific and unambiguous in providing that it is the plaintiff who makes the determination as to where venue shall be when alternatives exist. The rule states that "[v]enue shall be laid by the plaintiff." It does not provide that in all actions involving a public body or official the case must be tried in the county in which the cause of action arose. It requires only ...


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