Ewald v. Ortynskt

• Citation: 78 N.J.E. 527,79 A. 270
• Parties: EWALD v. ORTYNSKT et al.
• Decision Date: 08 March 1911
• Court: New Jersey Supreme Court

79 A. 270

78 N.J.E. 527

EWALD

v. ORTYNSKT et al.

Court of Errors and Appeals of New Jersey.

March 8, 1911.

Appeal from Court of Chancery.

Suit by George Ewald against Sotten Stephen Ortynsky and others. From an order of the Court of Chancery (75 Atl. 577) granting motions to withdraw the replication to the plea and to strike the plea and for leave to move to set aside service of process, the defendant Little Russian Creek Catholic St. Peter and Paul Church of Jersey City appeals. Affirmed.

Adolf L. Engelke, for appellant Herbert.

C. Gilson, for respondent.

GUMMERE, C. J. The bill in this case seeks to have decreed to be fraudulent and null and void as against the complainant certain conveyances of, and incumbrances upon, lands of the defendant Little Russian Greek Catholic St. Peter and Paul Church of Jersey City, a corporation of this state, to have a judgment which the complainant holds against that defendant declared to be a lien upon those lands, and to have that judgment enforced against them. The Little Russian, etc., Church tiled a plea to the jurisdiction, averring that it had never been brought into court by the service of subpoena, that by reason thereof the court did "not now, never had, and cannot have, jurisdiction over it," and that the failure to serve it with process was a bar to the complainant's right to relief upon its bill, and praying that it be dismissed from the court with its costs. The complainant replied to the plea joining issue thereon, and the case was then referred to the Vice Chancellor to take the proofs and hear the cause. At the close of the taking of the testimony, it clearly appeared that the service which was shown by the sheriff's return to have been made upon the defendant was, in fact, made upon a person who was neither an officer nor agent of the corporation and that the defendant consequently had not been brought within the jurisdiction of the court. At this stage of the proceedings, the court, conceiving that the plea was bad, but that, notwithstanding this fact, the complainant by replying to it had admitted its sufficiency, and that consequently if the pleadings remained upon the record the defendant would be entitled to a decree dismissing the bill, called the attention of counsel for the complainant to this phase of the case, and then granted him leave to move to withdraw his replication and strike out the plea, and, if these motions were granted, to move to set aside the service of process against the defendant and to have a new writ issued against it. The motions were made and were heard upon notice, and, after consideration by the court, were each of them granted and an order to that effect entered. From this order the defendant appeals.

The defendant's solicitor evidently presumed that by his plea he was presenting a case similar to that which was before us in Wilson v. American Palace Car Co., 65 N. J. Eq. 730, 735, 55 Atl. 997, 999, in which we stated at the conclusion of our opinion: "On this record we are constrained to adjudge that these defendants have not been brought before the court by due process of law; that, therefore, they are not obliged to answer the bill, and should be dismissed." That the solicitor of the complainant held the same view with relation to the plea is shown by the filing of the replication. But, in the case referred to, the question before us for decision was whether nonresident defendants who had not been brought into court, and could not be brought in against their consent, and who declared themselves unwilling to submit to its jurisdiction, were entitled to set these facts up in a plea to the jurisdiction, and, upon establishing them, be dismissed; and what we said in the part of the opinion already quoted referred only to ...