MacPhail v. Nassau

• Decision Date: 30 March 1936
• Citation: 184 A. 633
• Parties: MacPHAIL et al. v. NASSAU.
• Court: New Jersey Supreme Court

184 A. 633

MacPHAIL et al.

v. NASSAU.

Second District Court of Paterson, New Jersey.

March 30, 1936.

Action by Wilbur MacPhail and another against Barnett Nassau. On motion to set aside service of summons and dismiss the action.

Motion granted.

Rubinson & Bornstein, of Paterson, for plaintiffs.

William V. Rosenkrans and A. Leo Bohl, both of Paterson, for defendant.

ROSENSTEIN, Judge.

This is a motion to set aside service of the summons and dismiss the above action, on the ground that the territorial jurisdiction of this court is within the boundaries of the county of Passaic, and that, therefore, service on the commissioner of motor vehicles in Trenton is invalid, inasmuch as Trenton is not within the territorial limits of Passaic county. In considering the motion, I have come to the following conclusions:

1. The case of Bischoff v. Schnepp, 139 Misc. 293, 249 N.Y.S. 49, cited by the defendant, has no bearing on the present question. A reading of that case discloses that the city court, whose process was there involved, is a constitutional court, with territorial jurisdiction limited to the county in which the court is set up. It follows, therefore, that even if the Legislature expressly conferred on that court jurisdiction to serve process outside of the county, such legislative enactment would be invalid.

2. District courts in New Jersey are not constitutional courts. They are the creatures of the Legislature, which may, therefore, assign them such territorial jurisdiction as it may see fit. By the act creating them, district courts have a limited territorial jurisdiction, namely, the boundaries of the county, in which they are set up. Nevertheless, the Legislature may, in a limited number of cases, or in all cases, increase this territorial jurisdiction.

3. The question presented is whether by the statute creating the commissioner of motor vehicles the agent of nonresident owners and drivers of automobiles for the acceptance of process, the Legislature meant to enlarge the jurisdiction of this court. I am cited the case of Gabriel v. Mason Art, Inc., 125 A. 125, 2 N.J.Misc. 50. The authority of that case for the proposition that service upon the commissioner in Trenton is valid is lessened considerably by the fact that the Supreme Court admitted that, in that case, defendant, after challenging the jurisdiction of the court below, went to trial on the merits of the case. Upon that ground alone, the Supreme Court was justified in affirming the judgment of the lower court.

It is true that the Supreme Court also says (although this seems unnecessary to its affirmance) that the service upon the secretary of state was valid. I have always doubted the soundness of this view. The court in that case was construing section 43a of the Corporation Act, 2 Comp.St.1910, p. 1626, § 43a. While the language of that section is general, "it shall be lawful * * * to serve process against any such corporation upon the secretary of state," nevertheless, the section ought to be read as a whole, and then it will be found that the statute was remedial. The statute being; remedial, what was the defect it was designed to remedy? It was intended to cover the situation where a default was existing, namely, the failure of either a domestic corporation or foreign corporation authorized to transact business in this state, to designate an agent for the service of process, or where such agent was designated,...