Cohen v. Plutschak

• Decision Date: 22 March 1930
• Citation: 40 F.2d 727
• Parties: COHEN v. PLUTSCHAK et al.
• Court: U.S. District Court — District of New Jersey

40 F.2d 727 (1930)

COHEN v. PLUTSCHAK et al.

District Court, D. New Jersey.

March 22, 1930.

Francis J. Smith, of Camden, N. J., for the motion.

Samuel G. Cohen, of New Brunswick, N. J., opposed.

AVIS, District Judge.

This action was originally begun in Middlesex county circuit court; the two defendants being nonresidents of the state of New Jersey, and the plaintiff being a resident.

Service of the summons and complaint was made upon the defendants under the provisions of chapter 232 of the Act of 1924 (N. J. P. L. p. 517), as amended by chapter 232, Pamphlet Laws 1927, which latter enactment reads as follows:

"1. Section one of the act of which this act is amendatory be and the same hereby is amended so that the same shall read as follows:

"1. From end after the passage of this act any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of New Jersey, providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to nonresident chauffeurs, operators and owners by law of driving such a motor vehicle or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall, by such acceptance and the operation of such automobile within the State of New Jersey, make and constitute the Secretary of State of the State of New Jersey his, her or their agent for the acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such chauffeur, operator or the owner of such motor vehicle, arising out of or by reason of any accident or collision occurring within the State in which a motor vehicle operated by such chauffeur, or operator, or such owner is involved; and the acceptance of the said privilege or the operation of said motor vehicle shall be a signification of his, her or their agreement that any such process against him, her or them which is so served shall be of the same legal force and validity as if served upon him, her or them personally. Service of such process shall be made by leaving the original and a copy of the summons and complaint, with a fee of two dollars, in the hands of the Secretary of State of the State of New Jersey, or someone designated by him in his office, and such service shall be sufficient service upon the said nonresident chauffeur, operator or owner; provided, that notice of such service and the copy of the summons and complaint are forthwith sent by registered mail to the defendant by the Secretary of State or such person acting for him in his said office, and the defendant's return receipt and the affidavit of the Secretary of State or such person in his office acting for him, of the compliance herewith are appended to the said summons and complaint and filed in the office of the clerk of the court wherein the said action may be pending; provided, also, that the date of the said mailing and the date of the receipt of the return card aforesaid are properly endorsed on the said summons and complaint and signed by the said Secretary of State or someone acting for him. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action. The fee of two dollars paid by the plaintiff to the Secretary of State at the time of the service shall be taxed in his costs if he prevails in the suit. The said Secretary of State shall keep a record of all such processes, which shall show the day and hour of said service." N. J. P. L. 1927, pp. 441-443.

The proofs show that service was made on the secretary of state in accordance with the above statute, on October 9, 1929, and forthwith a notice of the service, with a copy of the summons and complaint, was sent to the defendants, by registered mail, and the affidavit of the representative of the secretary of state shows that the return card was signed by the defendant J. Phillip Wright, who received the same and receipted therefor on October 10, 1929, at Preston, Md.

Subsequently application was made to the Middlesex county circuit court by the defendant Wright by petition, alleging diversity of citizenship of plaintiff and petitioner, and that the amount in dispute was in excess of $3,000, and praying for the removal of this suit before trial into this court. Upon this petition, the judge of the said circuit court, on November 13, 1929, made an order of removal, and this cause was duly removed, and the case now appears to be legally here.

The defendant Wright now seeks to set aside the service of the summons and dismiss the suit, on the following grounds, as alleged in the notice:

"1. That the summons has never been legally served upon the defendant, J. Phillip Wright, and that the said J. Phillip Wright is not properly in Court for the purposes of this suit.

"2. That the Court cannot have any jurisdiction of such actions unless service is made personally, upon the defendants herein, and service cannot be made upon said defendant unless he is within the State.

"3. That service made pursuant to Chapter 232 of the Laws of 1924 as amended or supplemented by the Chapter 232 of the Laws of 1927 is a nullity, is void and of no effect.

"4. That the complaint does not show that the defendant is a non-resident nor does it show that the automobile or truck is not registered in this state.

"5. That the defendant is not such a person as contemplated by the terms of the Act.

"6. That the summons and complaint has not been served in the manner provided by the Act.

"7. That the Secretary of State has not done each and every necessary thing to give the Court jurisdiction over the defendants."

The grounds alleged in paragraphs 6 and 7 are not argued in the brief filed for defendant Wright, and my recollection is that, at time of argument, they were specifically abandoned.

Grounds 1, 2, and 3, set out in the notice, are practically identical, and in fact all attack the constitutionality of the New Jersey statute heretofore set forth.

Counsel for the defendant Wright contends that the service of process is illegal and in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. In the case of Hess v. Pawloski, 274 U. S. 352, 356, 47 S. Ct. 632, 633, 71 L. Ed. 1091, it is held: "Motor vehicles are dangerous machines, and, even when skillfully and carefully operated, their use is attended...