Beca Realty, Inc. v. Eisberg

• Decision Date: 15 November 1973
• Citation: 125 N.J.Super. 575,312 A.2d 516
• Parties: BECA REALTY, INC., a N.J. corporation, Plaintiff, v. William EISBERG and Rita Eisberg, Defendants.
• Court: New Jersey District Court

Page 575

125 N.J.Super. 575

312 A.2d 516

BECA REALTY, INC., a N.J. corporation, Plaintiff, v. William EISBERG and Rita Eisberg, Defendants.

District Court, Bergen County,

New Jersey.

Nov. 15, 1973.

Freint & Jacobs, Dumont, for plaintiff.

Ryan & Sommers, Hackensack, for defendants.

HUOT, J.D.C.

This is an action for a real estate brokerage commission. Defendants listed premises known as 17 Ross Avenue, Demarest, Bergen County, New Jersey, with plaintiff and agreed to pay a commission of 5% Of the sales price. It was an exclusive listing requiring payment to plaintiff if the property were sold within six months of the expiration date of the listing. The property was sold after the listing expired but within six months thereafter; however, plaintiff did not receive a commission. The merits of the dispute are not now before the court.

After the sale of the property defendants left New Jersey and established residency in Florida. Thereafter, plaintiff attempted service on the defendants in Florida by registered mail. Defendants did not respond to this service and a default judgment was entered in this court for $2,034. Defendants now move to vacate entry of the default judgment and to quash service of process. Initial examination of this transaction discloses that New Jersey has a sufficient interest in the dealings of the parties to enable it to entertain this action. At the time the parties entered into the contract both plaintiff and defendants were residents of and domiciled in New Jersey. The contract, regardless of forum, will be governed by New Jersey law.

Due process requires only that in order to subject a defendant to a judgment In personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

It is clear that defendants have had sufficient contacts with New Jersey to satisfy the due process requirements so that the case may be heard in New Jersey. They argue, however, that even if the suit is proper in New Jersey, the county district court is not the proper forum. Thus the question raised is whether the manner of service of process used by the plaintiff in this case is sufficient for this court to have jurisdiction.

The jurisdiction of the county district court is established by the Legislature by authority of our Constitution. N.J.Const. (1947), Art. VI, § I, par. 1:

The judicial power shall be vested in a Supreme Court, a Superior Court, County Courts and inferior courts of limited jurisdiction. The inferior courts and their jurisdiction may be from time to time established, altered or abolished by law.

'(The county district courts) are creatures of the Legislature and may be given such jurisdiction with regard to subject matter and territory as the Legislature sees fit.' Kappish v. Lotsey, 76 N.J.Super. 215, 222, 184 A.2d 17, 21 (Cty.D.Ct.1962). 'The County district courts are inferior courts of limited jurisdiction, which the Legislature may establish, alter or abolish in its discretion as the public good may require.' Andriola v. Galloping Hill Shopping Center, Inc., 93 N.J.Super. 196, 199, 225 A.2d 377, 379 (App.Div.1966).

The territorial jurisdiction of the county district court as established by the Legislature is provided at N.J.S.A. 2A:6--32 Except as otherwise provided by law, the territorial jurisdiction of every county district court shall be coextensive with the limits of the county wherein the county district court is established.

Case law holds that upon the establishment of a territorial jurisdiction, the county district court has not the jurisdiction to serve process beyond the territorial boundary of the county. Thus, 'The district court in Burlington County has no jurisdiction to cause its process to be served beyond the confines of the county.' Wall Rope Works, Inc. v. Sperling, 116 N.J.L. 449, 185 A. 477 (Sup.Ct.1936). See also, MacPhail v. Nassau, 14 N.J.Misc. 292, 184 A. 633, D.Ct. (1936); Mohr v. Sonnet, 17 N.J.Misc. 226, 8 A.2d 109 (S.Ct.1939); and also Globe Industrial Loan Corp. v. Caldwell, 20 N.J.Misc. 435, 28 A.2d 775 (D.Ct.1942), where it was held that a district court has no jurisdiction to issue a wage execution which would be effective beyond the limits of the county wherein it is established.

The territorial jurisdiction of the county district court has been given limited expansion by the Legislature. Under N.J.S.A. 2A:6--33:

In any action brought in any county district court in this State against one or more defendants upon whom summons can be served Within the county and against any additional defendant or defendants or third-party defendant or defendants upon whom summons cannot be served within the county, the summons and complaint may be served in any other county in this State upon such additional defendant or defendants or third party defendant or defendants by any officer authorized to serve a summons issuing out of the county district court of that county. Service of such summons and complaint by such officer shall be as effectual to bring said additional defendant or defendants into court As though the same were served within the county in which the county district court issuing such summons is located. (Emphasis added)

It is clear that the Legislature intended that any service of process outside of the county would be predicated on the ability of the county district court to obtain In personam jurisdiction over the original defendant in a third-party action, or a codefendant where there are two or more defendants. It is also clear that the county jurisdictional boundary was to remain as before except for this small exception.

This rule (2A:6--33) procedural and not substantive in nature. (Citing cases). It is a device whereby an original defendant to a pending suit may implead new defendants in the same action, to whom he seeks to pass on all or part of the liability asserted against him. (Kappish v. Lotsey, supra, 76 N.J.Super. at 221, 184 A.2d at 21).

The jurisdiction of the county district court is also subject to regulation through the types of actions the court may hear and a dollar limit upon the amount in controversy. The regulation of the subject matter in this case is not an issue since the type of action (breach of contract) and the dollar amount both fit within the jurisdictional bounds of N.J.S.A. 2A:6--34.

When utilizing the device of constructive service it must be remembered that '(s)ubstituted or constructive service is in derogation of the general common law requirement that there be personal service (citing cases). Statutes or rules of court providing for such service must be strictly construed and fully carried out in order to confer jurisdiction.' A. & S. Manufacturing Co., Inc. v. Wetzler, 110 N.J.Super. 565, 266 A.2d 316 (Ch.Div.1970).

Plaintiff cites the court rules for the authority that the county district court has the use of this 'long arm statute' for service of process. The county district court service of process is governed by R. 6:2--3. R. 6:2--3(a) outlines who may make service of process and designates the 'sergeants-at-arms of the court and such other persons authorized by law to serve such process as the presiding judge designates. If the process is to be served in a county of this State other than that in which the action is instituted, the clerk of the county district court in which the action has been instituted shall forward it to the clerk of the county district court of the county in which service is to be made and it shall be delivered by that clerk to a person authorized to serve such process in his county.' From this rule the court draws the following conclusions: (1) service of process is to be by the sergeants-at-arms of the court in most circumstances; (2) the ability of the process server to serve process ends at the county line, the jurisdiction of the court; (3) the alternative method of service provided for out-of-county actions is limited to service arising within the State and does not include out-of-state service; (4) the rule is silent on the question of out-of-state service by the county district court because no out-of-state service is contemplated.

Under R. 6:2--3(b) the manner of service of process 'shall be made in accordance with R. 4:4--4 or, if applicable, R. 4:4--5.' The tentative draft comment to R. 6:2--3(b) states, 'by its reference to R. 4:4--4 and R. 4:4--5, it lays to rest any lingering question as to the applicability to district court actions, Where appropriate, of substituted and constructive service as authorized by these rules.' (Emphasis added).

Before examining R. 4:4--4 it is important to note that R. 4:4--3, which denotes by whom service is to be made in an action in the Superior and County Courts, states that 'wherever service by mail is permitted by these rules, such...