1 N.J. Misc. 432 | N.J. | 1923
The opinion of the court was delivered by
The defendant, a corporation organized under the laws of the Dominion of Canada as a beneficial association, duly authorized to do business in this state, having appointed the commissioner of banking and insurance as its agent on whom process may be served, issued its certificate of insurance on the life of plaintiff’s husband, in which she was named as beneficiary. The husband died and plaintiff brought suit on the certificate and recovered a judgment by default which she caused to be docketed in the Court of Common Pleas of the county of Middlesex. More than thirty days after the judgment was recovered the District Court allowed the defendant a rule to show cause why an order should not be made vacating and setting aside the judgment. On the return of the rule the court filed a memorandum that the service of the summons on the secretary of the local lodge was a good service, but
The plaintiff did not take such order, and five days thereafter, as the minutes of the District Court show, the cause was dismissed. It is to review this order that this writ was allowed. The effect of the order of the District Court is that the return of the summons'was not sufficient to give the court jurisdiction, and that the judgment was improperly entered, with leave to plaintiff to enter an order vacating the judgment ; to amend the return and bring on the case for trial, and the plaintiff having failed to exercise her privilege, the judgment was vacated and the proceedings dismissed for want of proper service on the summons.
The prosecutor argues that this order amounted to a new trial, applied for more than thirty days after the judgment was entered, which is beyond the power of the District Court vide, section 17 of the District Court act. Comp. Stat., p. 1959. But the judgment complained of was not the granting of a new trial, but the vacating of the judgment for want of a proper return, as the court viewed it, of the summons. Whether the District Court was correct in its notion that the person served was an agent of the defendant who could be properly served so as to bring defendant into court and bind it by any judgment that might be rendered is immaterial, for the judgment or order actually entered is that the judgment be vacated and the action dismissed because the return to the summons was not amended so as to give the court jurisdiction. The real question is whether the judgment is good in law, even if the reasons given for it are not. It ap
First. Because it has lost control of the cause because it had been docketed in the Middlesex Common Pleas immediately after the judgment was entered. This was disposed of contrary to the argument of the prosecutor in Lacombe v. Laval, 81 N. J. L. 68, where a District Court judgment was docketed in the Common Pleas and thence in this court. Mr. Justice Reed, speaking for this court, saying: “But in neither case did the docketing operate as a writ by which the judgment was transferred from the trial court to a higher court for the purpose of reviewing trial errors, or for the purpose of transferring the power over the judgment of the trial court to the superior court, save in the matter of execution and the entry of satisfaction of the judgment debt.”
It seems to me that under this case a District Court is not deprived of its jurisdiction over its own judgment to the extent of vacating it for want of jurisdiction over the person of the defendant, otherwise a defendant would have no remedy in a case where he had never been summoned and judgment entered by default, if plaintiff was nimble enough to immediately docket the judgment in the Common Pleas Court.
Second. That the action of the District Court amounted to granting a new trial, and that it has no such power within thirty days after judgment. ' I do not think the judgment dismissing the cause for want of jurisdiction was the granting of a new trial within the meaning of the statute, but assuming that it was, the limitation is thirty days after judgment. This, in my opinion, means a lawful judgment and one of which the defendant has notice either of the institution of the suit on which it was based, or in some other way. Laws must be
The proceedings under review are affirmed, with costs.