Byrd v. Ontario Freight Lines Corp., A--57
| Decision Date | 24 February 1956 |
| Docket Number | No. A--57,A--57 |
| Citation | 39 N.J.Super. 275,120 A.2d 787 |
| Parties | Lonnie BYRD, Plaintiff-Respondent, v. ONTARIO FREIGHT LINES CORP., Defendant-Appellant. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Joseph C. Paul, Newark, for appellant (Henry M. Grosman, Newark, attorney).
Robert C. Gruhin, Jersey City, for respondent (Morris Edelstein and Emanuel Greenberg, Jersey City, attorneys).
Before Judges CLAPP, JAYNE and FRANCIS.
The opinion of the court was delivered by
JAYNE, J.A.D.
At the threshold of our consideration of this appeal, we are confronted with the issue of the appealability, as of right, of the interlocutory order submitted for review. That order denied the defendant's motion to dismiss the complaint for the failure of the plaintiff to cause a summons to issue within ten days after filing the complaint. R.R. 4:4--1 and R.R. 4:42--2(a).
Appellant suggests that the instant appeal falls within the ambit of R.R. 2:2--3(a)(3) which provides, Inter alia, that '(a) Appeals may be taken to this court from orders or judgments, whether or not interlocutory: * * * (3) Determining that the court has jurisdiction over the subject matter or the person.' Unless its position is sound, the appeal is not maintainable.
It is well settled that whether a complaint should be dismissed for the failure to issue a summons within ten days after the filing of the complaint rests in the discretion of the court. The language of the applicable rules specifically so provides, and the decisions are in accord. Schnitzer and Wildstein, N.J. Rules Service, A IV--44, Supp. (1955); Pagano v. Krispy Kernals, Inc., 10 N.J.Super. 588, 77 A.2d 511 (Law Div.1950); Hazek v. Mercadante, 22 N.J.Super. 103, 91 A.2d 666 (Law Div.1952); X-L Liquors v. Taylor, 17 N.J. 444, 453, 111 A.2d 753, 758 (1955).
Plainly, the court below had jurisdiction of the subject matter which was an action sounding in negligence. But, did the court have jurisdiction of the corporate defendant since the summons, which was served upon it, had not been issued within the ten-day period? Our unequivocal answer is in the affirmative. Worthy of note at this point is that neither the form of the summons nor the efficacy of the service thereof is here impugned.
Initially, though quite significantly, our Supreme Court has had the occasion to point out that these rules (R.R. 4:4--1 and R.R. 4:42--2(a)) are 'designed to insure that after the plaintiff has filed his complaint he will diligently cause the summons to be issued so that the defendant will be advised of the complaint and be afforded early opportunity to answer or to take such other steps as he considers appropriate.' X-L Liquors v. Taylor, supra. Or, as Judge Proctor tersely expressed it in Pagano v. Krispy Kernals, Inc., supra, 10 N.J. Super. at page 590, 77 A.2d at page 512: 'The obvious purpose of the above rule is to keep a plaintiff's interest active.'
It seems...
To continue reading
Request your trial
-
Canadian Helicopters Ltd. v. Wittig
...295, 140 Ill.Dec. 368, 374, 549 N.E.2d 1240, 1246 (1990) (citing Supreme Court Rule 306(a)(1)(iii)); Byrd v. Ontario Freight Lines Corp., 39 N.J.Super. 275, 120 A.2d 787, 787 (1956) (applying R.R. 2:2-3(a)(3)); Poret v. State Personnel Comm'n, 74 N.C.App. 536, 328 S.E.2d 880, 882 (1985), ov......
-
CSR Ltd. v. Link
...140 Ill.Dec. 368, 549 N.E.2d 1240 (1990)(statute and rules of procedure allowed for interlocutory relief); Byrd v. Ontario Freight Lines Corp., 39 N.J.Super. 275, 120 A.2d 787 (1956)(discussing availability of statute allowing for interlocutory review of personal jurisdiction issue); Poret ......
-
Ioannou v. Ivy Hill Park Section Four, Inc.
...111 A.2d 753 (1955); see Hazek v. Mercandante, 22 N.J.Super. 103, 91 A.2d 666 (Law Div.1952); Byrd v. Ontario Freight Lines Corp., 39 N.J.Super. 275, 120 A.2d 787 (App.Div.1956); Rogers v. Dubac, 52 N.J.Super. 360, 145 A.2d 519 (Law Div.1958); Clare v. Fliegel, 74 N.J.Super. 31, 180 A.2d 40......
-
Rogers v. Dubac
...failure to comply with R.R. 4:4--1 does not go to the jurisdiction of the court over the person. In Byrd v. Ontario Freight Lines Corp., 39 N.J.Super. 275, 120 A.2d 787, 788 (App.Div.1956), Judge Jayne, in speaking of a defense on the grounds of failure to comply with R.R. 4:4--1, '* * * ne......