Jurewicz v. Locals 129713922343 Of United Bhd. Of Carpenters

• Decision Date: 01 October 1946
• Docket Number: 148/509.
• Citation: 49 A.2d 23
• Parties: JUREWICZ et al. v. LOCALS 1297, 1392, 2343 OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA et al.
• Court: New Jersey Court of Chancery

49 A.2d 23

JUREWICZ et al.

v.LOCALS 1297, 1392, 2343 OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA et al.

148/509.

Court of Chancery of New Jersey.

Oct. 1, 1946.

Suit in equity by Valentine Jurewicz and others against Locals 1297, 1392, and 2343 of the United Brotherhood of Carpenters and Joiners of America to recover union funds alleged to have been misapplied or misappropriated, in which the Brotherhood was joined as a party defendant and served with process by publication. On the Brotherhood's motion to set aside and quash the substituted service.

Motion denied.

Syllabus by the Court.

1. Substituted service by publication is lawfully authorized without any statutory limitation arising merely from the nature of the suit. R.S. 2:29-28, N.J.S.A. 2:29-28. However, its eventual operation and effectiveness is restricted by the due process clause of the federal Constitution.

2. Where the decision of the question of jurisdiction over the person of a non-resident defendant turns solely upon whether the cause is one in personam or in rem or quasi in rem, and the underlying factual subject matter appears on the face of the bill, objection to the efficiency of substituted service may properly be introduced on special appearance by motion.

Thornton C. Land, of Newark, for United Brotherhood.

Kristeller & Zucker, of Newark (Samuel H. Nelson, of Jersey City, of counsel), for complainants.

JAYNE, Vice Chancellor.

Apprehending that United Brotherhood of Carpenters and Joiners of America, a national union having its seat and principal office in Indianapolis in the State of Indiana, might have some distinct and material interest in the subject matter of this cause, the complainants amended their bill of complaint to conjoin the Brotherhood as a party defendant, and they have sought to cite that non-resident defendant by means of an order of publication.

With the permission of the court the Brotherhood has entered a special appearance in the cause and now applies by motion for an order ‘setting aside and quashing’ the substituted service. The reasons assigned in support of the application are (1) that the said defendant is not a resident of the State of New Jersey; (2) that there has been no personal service of process on it within this state; and (3) that the defendant has ‘no interest in rem or quasi in rem’ in the subject matter of the present cause.

Initially, I observe that the order directing publication and the service of notice thereunder appear to be conventional and in conformity with the statute. R.S. 2:29-28, N.J.S.A. 2:29-28. That vicarious method of imparting notice of a pending cause of action to a non-resident defendant who is alleged to have some material interest in the litigation is lawfully authorized without any statutory limitation arising merely from the nature of the suit. And so it may be said that the present application fails to expose anything unmethodical in the granting of the order of publication and the communications of notice in fulfillment of its directions. Vide, Post v. Kirkpatrick, 53 N.J.Eq. 641, 33 A. 1059.

However, proofs of the publication and mailing of the notice have been placed on file and remain uncontroverted. It is in such a situation that the Brotherhood appears specially to deny the acquisition of jurisdiction over it by substituted service and seeks by its motion to project for determination in limine the question of jurisdiction.

One may indulge with interest and with some degree of perplexity in a study of our reported decisions in quest of the prescriptive and proper procedure by which to challenge the effectiveness of such substituted service. A special appearance by leave of the court is, of course, essential if the service is sought to be attacked by a motion without the hazard of a general appearance. Swetland v. Swetland, 105 N.J.Eq. 608, 619, 149 A. 50, affirmed 107 N.J.Eq. 504, 153 A. 907.

Formerly, the point could be raised by a plea to the jurisdiction of the person, filed without express leave. Doubtless it can now be presented by an answer which is the modern capsule of such pleas. Ch.R. 70; McVoy v. Baumann, 93 N.J.Eq. 360, 117 A. 717, affirmed 93 N.J.Eq. 638, 117 A. 725. The cases disclose that the efficiency of substituted service has been variously raised in this court by motion to strike the bill where the non-resident has been the only defendant, by plea, by motion to quash the service, and by order to show cause why the order of publication should not be vacated.

The following citations are pertinent to the subject, and I donate them to those who are inquisitive: Albert v. Clarendon Land Investment & Agency Co., 53 N.J.Eq. 623, 23 A. 8; Wilson v. American Paiace Car Co., 65 N.J.Eq. 730, 55 A. 997; Andrews v. Guayaquil & Q. R. Co., 69 N.J.Eq. 211, 60 A. 568, affirmed 71 N.J.Eq. 768, 71 A. 1133; Groel v. United Electric Co., 69 N.J.Eq. 397, 60 A. 822; Lanning v. Twining, 71 N.J.E.q. 573, 64 A. 466; Amparo Mining Co. v. Fidelity Trust Co., 74 N.J.Eq. 197, 71 A. 605, affirmed 75 N.J.Eq. 555, 73 A. 249; Ewald v. Ortynsky, 77 N.J.Eq. 76, 75 A. 577, affirmed 78 N.J.Eq. 527, 79 A. 270; McBride v. Garland, 89 N.J.Eq. 314, 104 A. 435; Brimberg v. Hartenfeld Bag Co., 89 N.J.Eq. 425, 105 A. 68; Lehigh Valley R. Co. v. Andrus, 91 N.J.Eq. 225, 109 A. 746, affirmed 92 N.J.Eq. 238, 112 A. 307; Apgar v. Altoona Glass Co., 92 N.J.Eq. 352, 113 A. 593; McVoy v. Baumann, supra...