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Sears, Roebuck and Co. v. Braney

Decided: January 31, 1992.

SEARS, ROEBUCK AND COMPANY, PLAINTIFF,
v.
EDWARD BRANEY, JR., AND ALBERTA BRANEY, DEFENDANTS



Menza, J.s.c.

Menza

Plaintiff moves for an order to amerce the Sheriff of Middlesex County.

The question presented is whether a sheriff may charge mileage for each time he attempts service of process or whether he is entitled to only one mileage fee regardless of the number of attempts he makes to serve process.

This is a novel question which has not been decided in New Jersey.

On November 21, 1991, the plaintiff's attorney forwarded a summons and complaint to the Sheriff of Middlesex County with instructions to serve the defendant at a particular address in South Amboy, N.J. At the same time he enclosed a check in the sum of $16.84 representing Sheriff's fees of $13.00 and mileage fees of $3.84. The sheriff attempted service five times during normal business hours but was unsuccessful in serving process. The summons and complaint were then returned to plaintiff's attorney unserved. Plaintiff's attorney resubmitted the summons and complaint to the sheriff with a check for $3.84 representing an additional mileage fee and requested that the defendant be served in the evening hours. The sheriff in response, returned the mileage check of $3.84 and informed the plaintiff that he required additional monies for mileage fees for his unsuccessful attempts to serve process. The plaintiff objects to being charged additional mileage fees and moves to amerce the sheriff for his failure to perform his duties.

The authority for this motion to amerce is set forth in N.J.S.A. 2A:15-20, which provides:

The sheriff or other person to whom process is directed or delivered for service shall make prompt service and return thereof. In default of so doing he may in the case of original or mesne process issued in the plaintiff's application, be amerced by the court in an amount not exceeding plaintiff's demand for the use of the plaintiff.

It is the plaintiff's contention that the sheriff is only entitled to mileage if he is successful in effectuating service and not otherwise. The sheriff's position is that he is entitled to actual mileage traveled regardless of whether service of process is effectuated.

In the absence of a statute, a sheriff is not entitled to mileage for service of process. In Corpus Juris Secundum, the authors state:

Where a statute so provides, but not otherwise, a sheriff or constable is entitled to mileage for actual and necessary travel in performing his duties. 80 C.J.S., Sheriffs and Constables, § 251, Mileage, at 540.

There is a split of authority as to whether a sheriff is entitled to mileage for unsuccessful attempts at service.

In a majority of jurisdictions a sheriff is not entitled to, as a matter of right, and cannot recover, mileage for travel in attempting to serve process . . . which was not actually or lawfully served . . . and even though he ultimately served the process ...


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