Sullivan v. Walburn

• Decision Date: 29 January 1931
• Citation: 154 A. 617
• Parties: SULLIVAN v. WALBURN.
• Court: New Jersey Supreme Court

154 A. 617

SULLIVAN

v. WALBURN.

District Court of New Jersey, Burlington County.

Jan. 29, 1931.

Action by Patrick J. Sullivan against Harold A. Walburn. On defendant's rule to show cause why a judgment by default against him should not be vacated.

Rule made absolute, and judgment vacated.

Lester A. Drenk, of Camden, for the rule.

Furman A. De Maris, Jr., of Camden, opposed.

MATHEWS, J.

This matter comes before the court on a rule to show cause obtained by the defendant why a judgment by default against him in this cause should not be vacated. The judgment was entered on January 29, 1931.

The application for the rule and the affidavit in support thereof do not show that the defendant had any meritorious defense or that there was any surprise, and the sole ground upon which the rule was obtained and argued is that the service of process was not in accordance with the requirements of the statute for service of summons in the district court, and therefore void.

The return on the summons by the sergeant at arms shows as follows: "The said defendant, Harold A. Walburn, not being found, 1 served the within summons Jan. 24th, 1931, by leaving a copy thereof at his dwelling house or place of abode with Thelma Fisher, a member of his family above the age of fourteen years, informing her of its contents."

The statute covering the service of summons in district courts provides in part that it shall be served by reading the same to the defendant and delivering to him a copy thereof, if he or she shall be found, and then states: "And if not found by leaving a copy thereof at his or her dwelling-house or place of abode, in presence of some person of the family, of the age of fourteen years, who shall be informed of the contents thereof. * * *" 2 Comp. St. 1910, p. 1966, § 45.

It is apparent upon the face of the return that there has been full and substantial compliance with the statute. Therefore it would seem that a rule to show cause is the proper procedure to be followed in such a case. Mygatt v. Coe, 63 N. J. Law, 510, 44 A. 198.

There would seem to be no difference between the words "person of the family" and "member of the family." Heilemann v. Clowney, 90 N. J. Law, 87, 103 A. 687, 688. (See remarks of the court on page 90 of 90 N. J. Law, 103 A. 688.)

The affidavit submitted by the defendant on the rule, and the only testimony before the court submitted by him, reads in that part which is pertinent to the issue as follows: "The said Thelma Fisher is not a member of my family and never has been. She at times attends my home as a nurse maid. Said summons was not served upon any member of my family nor upon myself."

It will be readily seen that the statements contained in this affidavit with one exception are matters of legal conclusion, i. e., that Thelma Fisher is not a member of the defendant's family, and that, incidentally, is the exact question which the court has to decide. The only exception is the statement: "She at times attends my home as a nurse maid." Whether this alone would have been sufficient to have sustained the defendant's contention is at least doubtful, but the court is not called upon to decide that point, for the reason that the situation has been somewhat amplified by the affidavits of Thelma Fisher herself and Loberta Gladney, her mother, submitted by the plaintiff. Both affidavits are uncontradicted, and show that Thelma is eighteen years of age and a senior at high school, that during the summer of 1930 she worked at the home of H. A. Walburn in Riverton, and was there quite regularly, and that during this period part of the time stayed there overnight and part of the time, to use her own words, "I stayed at home over night." The affidavits further disclose that during part of that time Thelma stayed in Mr. Walburn's office to answer the telephone, etc. Since the summer of 1930, Miss Fisher has been at the Walburn home about twice a week on the average, and her duty is to take care of "their little girl when they are not at home." The affidavit of Loberta Gladney states as follows: "For the past few months she (Thelma) has been employed as a nurse maid by the Walburns to care for their little girl when they go out. She is employed by them now on an average of about twice a week."

Obviously, then, during the summer of 1930, when Miss Fisher was working quite regularly at the Walburn home, she stayed "at home" overnight. The only reasonable inference which can be drawn from these affidavits is that neither during the summer of 1930 nor at the time that the summons in this case was served did Thelma Fisher regard the home of the Walburns as her home, but obviously from the statements in the affidavits she had some other place of residence which she regarded as "home."

The sole question, therefore, to be decided is whether a girl who is employed by the defendant about twice a week regularly as a nursemaid, and who does not reside with the defendant, can be considered a member of the family within the meaning of the statute.

I think it is clear that the word "family" as used in this statute is undoubtedly utilized in a broad sense, and does not confine itself to blood relatives of the defendant who are residing at his home. In this connection it is interesting to note that the Practice Act covering the service of summons in the higher courts provides: "A copy whereof shall be served on the defendant in person * * * or left at his usual place of abode." 3 Comp. St 1910, p. 4067, § 52. It will therefore be seen that less formality in the service of summons in the higher courts is required by statutory language than in the district court. This fact cannot affect the specific requirement in the District Court Act, of course, but it would seem to lend weight to the argument that the term "family" should be given the broad construction in the interpretation of the latter act, and, if one is to accept the statements of the court in ...