Kappish v. Lotsey

• Decision Date: 30 August 1962
• Docket Number: No. 8361,8361
• Citation: 76 N.J.Super. 215,184 A.2d 17
• Parties: Joseph KAPPISH, Plaintiff, v. William LOTSEY, Defendant and Third-party Plaintiff, v. Lloyd McCREA and William McCrea, Third-party Defendants.
• Court: New Jersey District Court

Page 215

76 N.J.Super. 215

184 A.2d 17

Joseph KAPPISH, Plaintiff, v. William LOTSEY, Defendant and Third-party Plaintiff, v. Lloyd McCREA and William McCrea, Third-party Defendants.

No. 8361.

District Court, Warren County,

New Jersey.

Aug. 30, 1962.

Joseph V. DeMasi, Phillipsburg, attorney for plaintiff (not appearing on the motion).

John F. Salmon, Newark, for defendant third-party plaintiff (Mead, Gleeson, Hansen & Pantages, Newark, attorneys).

Oscar W. Rittenhouse, Clinton, for third-parties defendant (Gebhardt & Kiefer, Clinton, attorneys).

BRY-NILDSEN, J.D.C.

Plaintiff Kappish instituted a negligence action in the Warren County District Court against defendant Lotsey, who was personally served within Warren County. Defendant Lotsey defaulted. With consent of plaintiff, the default was set aside, whereupon defendant Lotsey entered his appearance and demanded a jury trial. Then, pursuant to R.R. 4:14, defendant Lotsey applied for and obtained an order permitting the filing of a third-party complaint wherein defendant Lotsey alleged that two third-parties defendant, Lloyd McCrea, as owner, and William McCrea, as operator of a motor vehicle, were guilty of negligence which proximately caused the damages alleged by plaintiff Kappish, and that in the event of a determination that defendant third-party plaintiff Lotsey was chargeable with negligence proximately causing the plaintiff's damages, the third-parties defendant were also negligent and liable for the same, and in such event the third-parties defendant would be liable under N.J.S. 2A:53A--1 et seq., N.J.S.A., to the defendant third-party plaintiff for a contribution for their proportionate share of any amount paid by the defendant third-party plaintiff.

It appears that both third-parties defendant are residents of Alexandria Township, Hunterdon County. Defendant third-party plaintiff, nevertheless, pursuant to N.J.S. 2A:6--33, N.J.S.A., caused third-parties defendant to be personally served at their Hunterdon County residence with copies of the third-party summons and complaint, by Ralph W. Bird, Undersheriff of Hunterdon County, on May 22, 1962.

Upon due notice, third-parties defendant McCrea appeared specially before the Warren County District Court and moved to set aside the service of the third-party summons and complaint on the ground that such service was invalid since it was not effected within the territorial jurisdiction of the Warren County District Court.

The question presented upon the motion is whether or not third-parties defendant are defendants within the purview of N.J.S. 2A:6--33, N.J.S.A. and more particularly, whether or not they may be treated as codefendants with the original defendant Vis-a -vis the original plaintiff, for the purpose of extending what would otherwise seem to be the territorial jurisdiction of the court as provided in N.J.S. 2A:6--32, N.J.S.A.

Though counsel submitted able memoranda of law and presented articulate oral arguments, neither their research, nor that of the court disclosed any reported decision on the point.

The defendant third-party plaintiff relies upon the provisions of N.J.S. 2A:6--33, N.J.S.A., which provides:

'In any action brought in any county district court in this state against 1 or more defendants upon whom summons can be served within the county and against any additional defendant or defendants upon whom summons cannot be served within the county, the summons and complaint may be served in any other county of this state upon such additional defendant or defendants by any officer authorized to serve a summons issuing out of the county district court of that county. Service of such summons and complaint by such officer shall be as effectual to bring said additional defendant or defendants into court as though the same were served within the county in which the county district court issuing such summons is located.'

The source of this section appears to be N.J.S.A. 2:8--38.1 (L.1949, c. 142, sec. 1), effective May 19, 1949. This was one of a series of acts by which the Legislature, following the District and Municipal Court Act of 1948 (L.1948, c. 264, p. 1145, effective January 1, 1949) apparently sought to adapt the district court and its procedures to the new practice.

Third-parties defendant McCrea rely principally upon the respected authority of Judge Ervin S. Fulop, who, in 17 New Jersey Practice, sec. 153, pp. 70--71, commenting upon N.J.S. 2A:6--33, N.J.S.A., said:

'The statute makes no reference to third party defendants. It would seem that the original defendant may not bring in a third party defendant by having him served in another county. However, if two or more third party defendants are to be summoned, and at least one can be served within the county, then the statute may apply to permit serving an additional defendant or defendants outside of the county, just as in the case of an original action.'

The applicable rule governing third-party practice in the county district courts is R.R. 4:14 (incorporated into the district court practice by R.R. 7:1--3 and 5:2--1, respectively). This rule, as former Rule 3:14--1, was promulgated and effective September 15, 1948, and was substantially identical to Federal Civil Rule 14(a) as amended, 28 U.S.C.A., adapted only to provide for notice to the plaintiff. 2 Schnitzer & Wildstein, New Jersey Rules Service, p. 346. This rule is procedural and not substantive in nature. Sattlberger v. Telep, 14 N.J. 353 (1954), 102 A.2d 577. It is a device whereby an original defendant to a pending suit may implead new defendants in the same action, to whom he seeks to pass on all or part of the liability asserted against him.

This rule plays a vital part in the general scheme and overall purpose of the rules of practice. The dominant object of the rule is procedural economy. It seeks to spare the court the necessity of considering the same evidence at two or more hearings. It also tends to insure consistent results from the application of pertinent rules of law to the same or similar evidence arising from the same set of circumstances, by providing a simple and expeditious means of adjudicating in one action with all parties present, before the same judge, all of the issues of fact and law germane to the asserted actionable wrong, and to thus avoid circuity of action, duplication of evidence, multiplicity of suits, as well as the delay and expense incidental to such wasteful practice. New Jersey Rules Service, supra, at page 347.

County district court suits often embrace complicated and diverse issues of law and fact in controversies among many parties, while at the same time involving relatively small monetary considerations. The availability of R.R. 4:14 is, therefore, even more urgently necessary in such action. Multiplicity of suits and the disproportionate waste of time and expense occasioned thereby, present a prohibitive barrier to the practical pursuit of one's rights, often resulting in the actual deprivation of essential justice. That this rule should have been available in its fullest sense to district court litigants would seem to have been the clear intent of the Supreme Court in implementing the manifest design of the Judicial Article of the 1947 Constitution. Massari v. Einsiedler, 6 N.J. 303, 78 A.2d 572 (1951).

There is no question concerning the Legislature's power to extend the jurisdiction of the county district courts. They are creatures of the Legislature and may be given such jurisdiction with regard to subject matter and territory as the Legislature sees fit. Globe Industrial Loan Corp. v. Caldwell, 20 N.J.Misc. 435, 28 A.2d 775 (D.Ct.1942); 1947 Constitution, Art. VI, Sec. I, par. 1.

There also appears to be little question but that the Legislature in the enactment of N.J.S. 2A:6--33, N.J.S.A., (at first N.J.S.A. 2:8--38.1 by chapter 142 of the Laws of 1949, effective May 19, 1949) intended to implement the Judicial Article of the Constitution and the rule-making power of the Supreme Court. The Legislature is presumed to be familiar with its own enactments and with judicial declarations related to them, and to have passed or preserved cognate laws with intention that they be construed to serve a useful and consistent purpose. Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 94 A.2d 482, 36 A.L.R.2d 639 (1953); State v. Federanko, 26 N.J. 119, 139 A.2d 30 (1958). It is also to be assumed that the Legislature acted with existing constitutional law in mind. Jardine v. Rumson, 30 N.J.Super. 509, 105 A.2d 420 (App.Div.1954). Moreover, before the true meaning of a statute can be determined, consideration must be given to the occasion and necessity of the law, the problem in society to which the Legislature addressed itself, and prior legislative consideration of the problem as well as the legislative history of the statute under review. State v. Spindel, 24 N.J. 395, 132 A.2d 291 (1957). What clearer recognition of this principle could there be that the expression of legislative purposes which appears in the preamble to the act of 1948 (L.1948, c. 264, pp. 1145 etc.)? 'Whereas, The Constitution of 1947 provides for the vesting of judicial power in certain constitutional courts and further for the establishment, alteration or abolition by the Legislature of other courts of limited jurisdiction; and

Whereas, Such courts of limited...