Heilemann v. Clowney

• Decision Date: 20 February 1917
• Citation: 90 N.J.Law 87,103 A. 687
• Parties: HEILEMANN v. CLOWNEY.
• Court: New Jersey Supreme Court

103 A. 687

90 N.J.Law 87

HEILEMANN

v. CLOWNEY.

Supreme Court of New Jersey.

Feb. 20, 1917.

(Syllabus by the Court.)

Action by Henry H. Heilemann against Hannah M. Clowney. On rule to show cause why service of summons should not be set aside and cross-motion to permit issue and service of new summons. Motion to quash denied, and rule entered for a new summons or reservice of the old summons.

Argued February term, 1917, before GARRISON, PARKER, and BERGEN, JJ.

Garrison & Voorhees, of Atlantic City, for plaintiff. Clarence L. Cole, of Atlantic City (Lee F. Washington, of Atlantic City, on the brief), for respondent.

PARKER, J. The requirement of the statute of 1903 was that a copy of the summons "shall be served on the defendant in person at least two days before its return, or left at his usual place of abode at least six days before its return." Practice Act 1903, § 52; Comp. Stat. p. 4067. By an amendment of 1912 (Pamph. L. p. 468), no doubt, in view of the practice act of that year, and the rules and forms accompanying the same, wherein return days are eliminated from writs of summons, the words "at least two (or six) days before its return" are struck out, and the clause reads:

"A copy whereof shall be served on the defendant in person, or left at his usual place of abode. Said service shall be made forthwith after the process is delivered to the sheriff or other officer for service."

No personal service was made, and the question is whether there was valid substituted service.

The points made by defendant are these: (1) That the return fails to state that service was made "at" the defendant's "usual place of abode." (2) That such service was not in fact made. (3) That return was not made within legal time.

The testimony shows that at the time of the attempted service defendant lived at 167 St. James place, Atlantic City, in a building which has a business front on the elevated boardwalk, and an entrance door opening on an inclined ramp leading from the street level of St. James place to the boardwalk. The basement of the building, on the street level, was used as a workshop and storeroom by a rolling chair concern; the main floor, opening on the boardwalk and the ramp, as the place of business of the same concern; and the floor above, reached by the doorway on St. James place through a hall connecting with the rolling chair office and up a stairway separate from the rolling chair office, as the living apartments of the defendant and her family. No one else lived in the building. The evidence satisfies us that this apartment was her "usual place of abode" in the contemplation of the statute. She had no other place of abode, although at this period much of her time was spent at a local hospital in attendance on a sick son. At the time when the sheriff's deputy appeared with the summons, there was no one in the living apartments, and the side door on St. James place was locked. Another son of defendant, named Frank Clowney, who had just finished bathing in the ocean, was returning to the apartment in his wet bathing clothes when the sheriff's officer, learning his identity, asked for his mother and was told she was not at home. The officer tried to hand Clowney the papers outside the building, but he refused them, and the officer put the papers under the side door opening on the ramp. Clowney, according to his testimony, tried to enter by that door after the officer had gone and found it locked. No one answering the hell, he obtained access through the basement and thence to the hall and so upstairs. Later on he picked up the paper and gave it to bis mother's attorney without showing it to her. The return was not made until over a month after the attempted service, and several days after the depositions were taken under this rule. It reads as follows:

"Duly served within summons and complaint August 21st, 1910. on the defendant, Hannah M. Clowney, at 107 St. James place, Atlantic City, New Jersey, the defendant locking herself in the house, and refused to receive the writ, and the son, who is above the age of fourteen, also refusing to receive the writ, I placed a copy under the door, in the presence of the said son; the place service was made was the residence of the defendant at the time service was made."

It is quite clear that the return is defective in failing to state that service was made at defendant's usual place of abode. Mygatt v. Coe, 03 N. J....