Zander v. Martine

• Citation: 169 A.2d 228,66 N.J.Super. 310
• Decision Date: 08 March 1961
• Docket Number: No. 4--790,4--790
• Parties: Raymond ZANDER, Plaintiff, v. John H. MARTINE and John Martine, Defendants.
• Court: New Jersey County Court

Page 310

66 N.J.Super. 310

169 A.2d 228

Raymond ZANDER, Plaintiff, v. John H. MARTINE and John Martine, Defendants.

No. 4--790.

Union County Court

Law Division, New Jersey.

March 8, 1961.

Lyons & Lyons, Elizabeth, for plaintiff (William T. Lyons, Elizabeth, appearing).

William O. Barnes, Jr., Newark, for Unsatisfied Claim and Judgment Fund Board (Annamay T. Sheppard, Livingston, appearing).

BARGER, J.C.C.

This is an automobile negligence action in which the plaintiff is seeking damages for personal injuries and property damage. The plaintiff alleges that on September 1, 1959 a motor vehicle owned and operated by the plaintiff was stopped at the intersection of Morrell Street and East Jersey Street, Elizabeth, New Jersey, and was struck in the rear by a motor vehicle operated by defendant John Martine, of 1065 East Jersey Street, Elizabeth, New Jersey, and owned by defendant John H. Martine, of Knappernich Manor, Genoa City, Wisconsin.

This action was instituted on February 1, 1960, and a summons and complaint forwarded to the Sheriff of Union County for service upon defendant John Martine at the address in this State above indicated. Also on the same date a summons and complaint was forwarded to the Director of the Division of Motor Vehicles under the provisions of N.J.S.A. 39:7--2 for substituted service upon defendant John H. Martine, a nonresident owner and residing at the address above indicated, to be served in the manner as required by N.J.S.A. 39:7--3.

On February 8, 1960 the Sheriff of Union County notified the attorney for plaintiff, 'Deputy reports the defendant, John Martine, has moved to Florida about a year ago.' On February 26, 1960 the Sheriff of Union County was furnished with a copy of the summons and complaint by the attorney for plaintiff and a request was made to serve the same on the Director as agent of defendant under the provisions of N.J.S.A. 39:7--2.1, as substituted service upon defendant John Martine, as the plaintiff had secured information that this defendant, formerly a resident, was then a nonresident and was residing at 200 West 53rd Terrace, Hialeah, Florida, P.O. Box 2342, Miami, Florida. On March 31, 1960 the Director notified the attorney for plaintiff that the certified mail containing the summons and complaint addressed to defendant John Martine, the operator, had been returned marked, 'Sent to John Martine, 200 West 53rd Terrace, Hialeah, Florida, P.O. Box 2342, Miami, Florida, and forwarded to Colony Beach Club, Lido Beach, L.I., N.Y., moved and unclaimed.' No further attempts to serve this nonresident defendant were made.

On February 16, 1960 the Director notified the attorney for the plaintiff that the certified mail containing the summons and complaint forwarded to defendant John H. Martine, the owner, at the address indicated, had been returned marked, 'Moved, left no address.' No further attempts to serve this nonresident defendant were made.

Thereafter, on April 26, 1960, a default was entered by the clerk of this court at the request of plaintiff against both defendants.

On January 9, 1961 the matter was presented to the court at the request of plaintiff, after notice to the Fund hereinafter referred to, for the assessment of damages.

As a result of a notice to the Unsatisfied Claim and Judgment Fund Board by plaintiff, under N.J.S.A. 39:6--74, and in contemplation of a claim against the Fund for the amount of any judgment, and in furtherance of such notice and in behalf of the Fund and defendants, an attorney appeared for the Board, as authorized under N.J.S.A. 39:6--75, and objected to the default entered and to any assessment of damages thereunder, on the legal ground that the court did not have jurisdiction of defendants in that they had never been served in the action, as contemplated by the sections of the statute referred to and in compliance therewith. The matter was argued by consent and it is the contention of the plaintiff that service upon the Director in the manner indicated, as the agent of defendants, under the sections of the statute herein cited, is substituted service, as the Director is designated their agent for the purposes of such service and the court does have jurisdiction over defendants and can render a personal judgment against them irrespective of whether any notice is actually received by defendants.

N.J.S.A. 39:7--2 makes the Director of the Division of Motor Vehicles the agent for the acceptance of service of process, in any civil action or proceedings, upon any nonresident person, corporation or association who drives or causes to be driven a motor vehicle upon the public highways of this State, and such operation shall be the signification of such agency agreement. The cited statute also provides as follows:

'The agreement that the Director of the Division of Motor Vehicles in the Department of Law and Public Safety shall be constituted the agent, of a nonresident operator or owner of a motor vehicle, which is involved in any accident in this State, for the acceptance of process in any such action or proceeding, shall be irrevocable and binding upon the executor or administrator of such operator or owner, and service of process shall be made upon the executor or administrator of any such operator or owner dying prior to the commencement of such an action or proceeding in the same manner and on the same notice as herein provided for service of process upon such operator or owner, and any such action or proceeding, duly commenced by service upon such an operator or owner under the provisions of this chapter, who shall die thereafter during the pendency of such action or proceeding, shall be continued against his executor or administrator by the court in which the same is pending, upon such application and notice as the court shall prescribe. The operating or causing to be operated of any such motor vehicle within this State shall be the signification of the agreement of such nonresident person operating the same, or of such person or persons or corporation or association for whom such motor vehicle is operated, of his, their or its agreement that any such process against him, or them, or it, or against his or their executors or administrators, which is so served shall be of the same legal force and validity as if served upon him or them personally or upon it in accordance with law within this State.'

It appears clear from the wording of the foregoing provision that service on a defendant is contemplated, and this section must be read together with the section herein cited setting forth the various...