Rogers v. Dubac

• Decision Date: 16 October 1958
• Docket Number: No. L--9452,L--9452
• Citation: 145 A.2d 519,52 N.J.Super. 360
• Parties: Florence B. ROGERS, Plaintiff, v. Francis DUBAC, Defendant. . Law Division
• Court: New Jersey Superior Court

Page 360

52 N.J.Super. 360

145 A.2d 519

Florence B. ROGERS, Plaintiff, v. Francis DUBAC, Defendant.

No. L--9452.

Superior Court of New Jersey.

Law Division.

Oct. 16, 1958.

Fred W. Jung, Jr., Newark, argued the motion for defendant.

John C. Givens, Red Bank, argued the motion for plaintiff (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

KNIGHT, J.S.C.

This matter is before the court on a motion by the defendant for (1) summary judgment on the ground that the statute of limitations has run barring plaintiff's cause of action, and (2) dismissal of the complaint on the ground that the summons was not caused to issue within the ten-day limit prescribed by R.R. 4:4--1 and R.R. 4:42--2(a). The facts upon which the issues presented by this motion may be resolved are undisputed. Plaintiff's complaint was filed on July 13, 1956, in which she alleges that she sustained personal injuries on October 28, 1954, when she fell while a patron in the defendant's Inn. The summons was not issued until March 11, 1957. The defendant was served with process on March 13, 1957, and the summons was filed with the Clerk of the Superior Court on March 15, 1957. On March 29, 1957 he defendant filed his answer, in which he set up as one of his defenses the statute of limitations, and in a separate defense he reserved 'the right to strike the complaint by motion at or before the time of trial on the grounds of insufficiency of process, lack of jurisdiction over the person and/or insufficiency of service of process.'

Inasmuch as civil actions are commenced by the filing of a complaint with the court, R.R. 4:3--1, see also Poetz v. Mix, 7 N.J. 436, 81 A.2d 741 (1951); Isaacks v. Jeffers, 144 F.2d 26 (10 Cir., 1944); Schram v. Holmes, 4 F.R.D. 119 (D.C.E.D.Mich.1943), and Schnitzer & Wildstein, N.J. Rules Service A IV 21--24, this action is not barred by the statute of limitations as the complaint was filed on July 13, 1956 and was within the two-year limitation for bringing action for personal injuries prescribed by N.J.S. 2A:14--2, N.J.S.A. the alleged accident having occurred on October 28, 1954.

However, the issue raised by plaintiff's contention that the defendant has waived his right to move for a dismissal of the complaint pursuant to R.R. 4:42--2(a) for plaintiff's failure to cause summons to issue within ten days from the filing of the complaint requires other considerations.

Under the provisions of R.R. 4:12--2 every available defense, legal or equitable, in law or in fact, in abatement or in bar, to a claim for relief, however asserted, by complaint, counterclaim, cross-claim or third-party claim, 'shall' be presented in an answer thereto, except that the six defenses enumerated therein may at the option of the pleader be made at or before answer. See Massari v. Einsiedler, 6 N.J. 303, 78 A.2d 572 (1951) and Schnitzer & Wildstein, supra, A IV--226. This requirement of R.R. 4:12--2 is stated in unqualified affirmative and mandatory terms. The consequence of a failure to present the defenses in the manner prescribed is a waiver thereof under R.R. 4:12--8. Schnitzer & Wildstein, supra, A IV - 314. The defendant's answer in the case Sub judice did not set forth any defense representing that of R.R. 4:4--1, namely that the summons was not issued within the prescribed ten-day period from the filing of the complaint. However, the defendant contends that his seventh defense, in which he set forth lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process, is sufficient to embrace a defense based upon the failure to issue a summons within ten days as prescribed by R.R. 4:4--1 and R.R. 4:42--2(a). The court cannot agree with this contention. The defenses of lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process found in R.R. 4:12--2 are Words of art taken from Federal Rule of Civil Procedure 12(b), 28 U.S.C.A. See Rules Governing All of the Courts of N.J., Comment on Rule 3:12--2 (Tent. Draft 1948). Lack of jurisdiction over the person speaks for itself, while 'insufficient process or insufficient service of process precludes acquisition of jurisdiction over the person.' Schnitzer & Wildstein, supra, A IV - 236. See also Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86 A.2d 201 (1952). Either one or all of these defenses attempt to abate the action because the court is powerless to render an effective judgment against one of the parties due to failure to obtain jurisdiction over the person. See Messenger v. United States, 231 F.2d 328 (2 Cir., 1956); Bucholz v. Hutton, 153 F.Supp. 62 (D.C.Mont.1957); Fistel v. Christman, 13 F.R.D. 245 (D.C.W.D.Pa.1952).

The failure to issue a summons within ten days of the filing of a...