Galler v. Slurzberg

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: BIGELOW
• Citation: Galler v. Slurzberg, 22 N.J.Super. 477, 92 A.2d 89 (N.J. Super. App. Div. 1952)
• Decision Date: 29 October 1952
• Docket Number: No. A--531,A--531
• Parties: GALLER v. SLURZBERG et al.

Page 477

22 N.J.Super. 477

92 A.2d 89

GALLER v. SLURZBERG et al.

No. A--531.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 8, 1952.

Decided Oct. 29, 1952.

Abraham J. Slurzberg, Jersey City, for appellants (August W. Heckman, Jersey City, attorney).

Joseph A. Davis, Jersey City, for respondent (William A. Kaufmann, Hoboken, attorney; O'Mara, Schumann, Davis & Lynch, Jersey City, of counsel).

Before Judges McGEEHAN, BIGELOW and SMALLEY.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The plaintiff is the primary distributor of a beverage known as '7 Up,' in the counties of Hudson, Bergen and Passaic. The defendants are, or were, 27 sub-distributors, each supplying the retailers in his assigned territory. Relations between plaintiff and defendants were regulated by a contract which had been executed in the interest of the latter by Local No. 560 of the Brotherhood of Teamsters. The plaintiff in the early months of 1952 conceived that the defendants had breached the contract in material respects, and had entered into a conspiracy which threatened to destroy her business. Thereupon, on March 10, 1952 the plaintiff notified defendants that she terminated the contract and two days later she instituted this action for damages.

The defendants retaliated by picketing the plaintiff's plants in Hackensack and Hoboken, and engaging in other activities of a kind commonly associated with labor disputes. On the plaintiff's motion, the court, by order dated May 9, 1952, permitted her to file a supplemental complaint setting forth these alleged facts and praying an injunction against the picketing and other activities. The supplement was filed and, after due argument, a temporary injunction was granted by order dated May 23, 1952. From these two orders the defendants appeal.

Interlocutory orders granting injunctions are appealable and so are interlocutory orders in a few other classes, but in general appeals cannot be taken from interlocutory orders. Rossbach v. Evening News Publishing Co., 3 N.J.Super. 143, 65 A.2d 634 (App.Div.1949). An order for leave to file a supplemental pleading is not appealable and therefore the appeal from the first order mentioned will be dismissed.

But defendants urge that, on the appeal from the injunction order, the propriety of the other order should be considered. It is the established rule that an appeal from a final judgment brings before the court antecedent orders which involve the merits and affect the judgment. Clock v Public Service Co-ordinated Transport, 8 N.J.Super. 20, 73 A.2d 203 (App.Div.1950). And see 5 C.J.S., Appeal and Error, § 1492. While we are skeptical that this rule is here applicable, we will assume that it is and will consider whether the order allowing plaintiff to file the supplemental complaint was erroneous.

The system of equity jurisprudence that we derived from England permitted only a single subject of litigation, or a single, closely related group of causes for complaint, to be embraced in one suit. If there existed two or more separate and distinct controversies between the parties, several suits must be employed to solve them. A multifarious bill was demurrable. Emans v. Wortman, 13 N.J.Eq. 205 (Ch.1860); Story, Equity Pleading, § 271. A cross bill had to be confined to the subject of the original bill. Kirkpatrick v. Corning, 39 N.J.Eq. 136 (Ch.1884) affirmed 40 N.J.Eq. 343 (E. & A. 1885). A supplemental bill was used to set up facts that occurred after the filing of the original bill, but it was not permissible by a supplemental bill to make a new and different case upon new matter. Story, Equity Pleading, § 616. Now, in the cause before us it appears that the acts of defendants alleged in the original complaint, as well as those stated in the supplemental complaint, had a common purpose and were parts of a single design, namely, to induce the plaintiff to agree to a change in her contract with the defendants in order that there should be a greater spread between defendants' purchase and resale prices. It is likely that even under the standards observed before enactment of the 1915 Chancery Act, the facts alleged in the supplemental complaint could have been brought before the court by a supplemental bill. Williams v. Winans, 22 N.J.Eq. 573 (E. & A. 1871).

In the course of the years, the idea has developed of joining all controversies between the same parties in a single action, where that course can conveniently be adopted, without producing a record so complicated as to impede justice. Rule 3:18 permits an unlimited joinder of claims or causes of action, in an action by a single plaintiff against a single defendant. For example, action on a note and a suit for personal injuries arising from negligence may be joined in one action, although the court, in its discretion, may order a severance. When there are several defendants and all are proper parties to each claim, claims may be joined as freely as if there were only one defendant. We have had a similar broadening of the scope of counterclaims. A defendant may file a counterclaim that is entirely unrelated to the original complaint. Rule 3:13--1. Our rule as to cross-claims by one defendant against another, is even broader than the corresponding federal rule. Any cross-claim may be asserted. Rule 3:13--6. Moore's Federal Practice, §§ 18.04, 13.18 and 13.32.

Supplemental complaints are not the express subject of any of our court rules but are comprehended in Rule 3:15--4 which provides that, by leave of the court, a party may 'serve a supplemental pleading setting forth transactions or occurrences which have happened since the date of the pleading sought to be supplemented.' Interpretation of the rule should be influenced by the general principle that all controversies between the parties may be determined in a single action. Professor Moore states his opinion: 'While the matters stated in a supplemental complaint should have some relation to the cause of action set forth in the original pleading, the fact that the supplemental pleading technically states a new cause of action, should not be a bar to its allowance but only a factor to be considered by the court in the exercise of its discretion.' Moore's Federal Practice, §§ 15, 16.

We are satisfied that there was no error in allowing plaintiff to file the supplemental complaint.

The interlocutory injunction was granted after argument upon the return of an order to show cause which had not been served upon the defendants themselves, but had been served upon the attorney who had attorney had appeared for the defendants, appeared for them. When we say that the we mean he had appeared in the litigation depending upon the original complaint; there had been no occasion for an appearance upon the supplemental complaint, and it was on the supplemental complaint that the order to show cause and the injunction were based. Immediately that the order to show cause was moved, counsel for defendants objected that he was not the agent of the defendants in the controversy set forth in the supplemental complaint, and that the service upon him was invalid. His objection was overruled, whereupon he presented answering affidavits and argued the motion for an injunction on the merits.

Defendants now reiterate that service of the order to show cause was insufficient and plaintiff responds that any defect in the service was cured by the general appearance of the defendants.

Our Rule 3:12--2, copied from Federal Civil Rule 12(b), 28 U.S.C.A., ordains that an objection for insufficiency of service of process and lack of jurisdiction over the person, is not waived by being joined in an answer or motion with other defenses or objections. Special appearances are no longer necessary. In the federal courts it is settled that a defendant's voluntary appearance in the action does not prejudice his objection to the lack of jurisdiction over his person, provided the objection is raised in the answer or before answering. Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3 Cir., 1944). And where the objection is overruled, it has long been the Federal doctrine that the defendant may contest the action on the merits and, if eventually defeated, can argue the question of jurisdiction over the person on the appeal from the final judgment. Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237 (1879).

While Federal Rule 12(b) has been adopted in New Jersey, we have also a rule, without counterpart in the federal system, providing that a general appearance shall have the same effect as if the defendant had been properly served. Rule 3:4--6. Obviously this rule and Rule 3:12--2 must be read together. Where a party, before raising his objection to jurisdiction over the person, by motion or answer takes any step that operates as a general appearance, he thereby waives his objection to the jurisdiction. Trautman v. Higbie, 10 N.J. 239, 89 A.2d 649 (1952). But if he first raises the question by motion or objection or answer under Rule 3:12--2 and thereafter appears generally, he does not waive his jurisdictional point. Cf. Swanson v. Swanson, 10 N.J.Super. 513, 77 A.2d 477 (App.Div.1950), affirmed 8 N.J. 169, 84 A.2d 450 (1951).

The rule that we have been discussing, Rule 3:12--2, applies expressly only to defenses to a claim for relief in a Pleading, and not to a defense to an interlocutory motion such as is now before us. But in our opinion the principle that an objection for lack of jurisdiction of the person is not waived by being joined with a meritorious defense, should be extended and applied to the defenses raised in opposition to a motion for an injunction. Defendants did not waive their objection to the jurisdiction by going into the merits of the motion.

It may be questioned whether the granting of an interlocutory injunction, without notice to a defendant who is domiciled within the State, violates our concept of due process...