Herman v. Arndt

• Decision Date: 31 January 1936
• Docket Number: No. 31.,31.
• Citation: 182 A. 830
• Parties: HERMAN v. ARNDT.
• Court: New Jersey Supreme Court

182 A. 830

HERMAN

v. ARNDT.

No. 31.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1936.

Syllabus by the Court.

1. A nonresident party, while necessarily going to, staying at, or returning from, the court, whether civil or criminal, and whether of general or limited jurisdiction, is privileged from the service of a summons or of a capias in a civil action.

2. A nonresident party, arrested and jailed on capias while leaving the courtroom after a necessary appearance, does not waive his privilege by the bare deposit of bail and giving of recognizance necessary to secure his freedom.

3. That the court below had the power, in its discretion, to impose a certain condition in making the order under review and did not do so, does not of itself constitute legal error.

Appeal from Supreme Court.

Action by Bert Herman against Kurt Arndt. From an order setting aside service of a writ of capias ad respondendum on defendant, plaintiff appeals.

Affirmed.

Arthur E. Dienst and Abram A. Golden, both of Newark, for appellant.

Harold K. Smith, of Jersey City, for respondent.

CASE, Justice.

The appeal is from an order in the Supreme Court setting aside service of a writ of capias ad respondendum.

Plaintiff and defendant, on February 8, 1935, as operators of respective automobiles, experienced an automobile collision on the Pulaski Skyway. Both were taken to the Oakland Avenue Police Station in Jersey City, and defendant was put under cash bail to appear for hearing on a charge of reckless driving. On the hearing date defendant, a resident of the state of Michigan temporarily sojourning in New York, came from the city of New York for the sole purpose of attending the hearing and returning to New York City immediately thereafter. As he was leaving the courtroom he was arrested on the capias, issued at the instance of the plaintiff in a civil action in the Essex Circuit for damages growing out of the collision. Defendant was thrown into jail and kept there for two days, when, 8:30 p. m. Saturday, March 2d, he obtained and deposited cash bail and was released. On March 5th he gave notice of motion for March 9th, which developed into the rule to show cause why the writ should not be vacated. Mr. Justice Parker allowed the rule as on a special appearance, decided upon the return that the defendant was exempt from arrest at the time of the service of the capias and made the order from which plaintiff now appeals.

Appellant has written down several grounds of appeal which respondent asserts, without contradiction, were not raised in the court below, and which, so far as we can determine from the record, were not there raised. A question not presented and argued in the court below will be held to have been waived and abandoned and will not be considered in an appellate tribunal. Kip v. People's Bank & Trust Co., 110 N.J.Law, 178, 164 A. 253. Therefore, we comment upon only three of the points presented on appellant's brief.

It is said that inasmuch as the court upon which the defendant was in attendance was of limited and not of general jurisdiction, immunity did not exist. The established rule of public policy in this state is that a nonresident party to a suit, and, with somewhat different form of relief, even a resident party, while necessarily going to, staying at, or returning from, the court, whether civil or criminal, is privileged from the service of a summons or of a capias in a civil action. Michaelson v. Goldfarb, 94 N.J.Law, 352, 110 A. 710, (and earlier cases cited therein), Prescott v. Prescott, 95 N.J.Eq. 173, 122 A. 611; Michelin v. Michelin, 100 N.J.Eq. 64, 135 A. 150; Golde v. Golde, 108 N.J.Eq. 519, 155 A. 677; Kutschinski v. Kutschinski, 112 N.J.Eq. 341, 164 A. 560; Brown v. Brown, 112 N.J.Eq. 600, 165 A. 643; Blair v. Vetrano, 172 A. 604, 12 N.J.Misc. 462. The reasoning appears sufficiently in Michaelson v. Goldfarb, supra, and Halsey v. Stewart, 4 N.J.Law, 366. Appellant's point is not supported by his citations. It is against the spirit and reasoning of our decisions. The purpose of the rule would not be served by such a distinction. The point is not well taken.

It is further said that the defendant in entering into a recognizance and posting bail ipso facto entered a general appearance in the cause; and the following New Jersey decisions are cited: Moore v. Richardson, 65 N.J.Law, 531, 47 A. 424; Ferenga v. Moskowitz, 130 A. 814, 1 N.J. Misc. 169; Sullivan v. Moffat, 68 N.J. Law, 211, 52 A. 291; Morgan v. Bowman, 103 N.J.Law, 542, 137 A. 655; Laura v. Puncerelli, 91 N.J.Law, 38, 102 A. 433; Logan v. Lawshe, 62 N.J.Law, 567, 41 A. 751, 753. Most of these citations do not touch the point at issue. But in Logan v. Lawshe the following language appears: "The defendant appeared to the writ, and filed special bail. The practice appears to be quite settled that an appearance in conformity with the purpose of the writ is a waiver of all defects,—at least those that are formal, either in the process or in the service. Ayres v. Swayze, 5...