88 N.J.L. 361 | N.J. | 1915
The opinion of the court was delivered bv
The plaintiff in this ease brought suit in the Hudson Circuit Court against the defendant for the alienation of the affections of her husband, and this appeal assails the validity of the judgment qf the Circuit Court which makes absolute a rule to show cause why the process for appearance should not be set aside for want of due service. The writ was served on the defendant, as appears by the return, endorsed on it, February 6th, 1915, “by leaving ,a true copy thereof for her at her usual place of abode at Avenue A and West Eighth street, Bayonne, with Joseph Stanton, caretaker of the said
The first question to be considered is whether such an order is tire subject of an appeal. No appeal was taken to this court in Mygatt v. Coe, above cited. An appeal will lie in most jurisdictions to review the action of the court in sustaining or overruling a demurrer to a declaration where the action or proceeding is finally disposed of by the court by dismissing the same or by giving a judgment for either party. 3 Corp. Jur. 483, and cases there cited.
In Taylor Provision Co. v. Adams Express Co., 72 N. J. L. 220, it was held that the validity of an order dismissing a rule to show cause, under conditions like those now involved, would not be decided in this court until after the entry of final judgment; but in the present case the order making the rule absolute is in the nature of a final judgment and seems to be dispositive of the case, for, as the defendant is now discharged, and cannot be further proceeded against in this suit, it is, in effect, a final determination of the present action.
In Tomlinson v. Armour, 75 N. J. L. 748, it was held that a judgment in favor of either party upon demurrer to a declaration is a final judgment reviewable in error, citing Hale v. Lawrence, 22 Id. 72, 80.
In State v. Pennsylvania Steel Co., 123 Md. 212, it was held that an order quashing the return to a summons, because defendant, a foreign corporation, was not engaged in business within the state, and the summons was not served upon an agent, authorized for that purpose, is a final order, from which an appeal can be taken.
In Knight v. Cape May Land Co., 83 N. J. L. 597 (at p. 599), the court says.: “While the general rule is that a writ of error will not lie to review the granting or discharging of a rule to show cause, it has always been confined to cases where the action of the court was founded solely upon (he exercise of its discretionary power, but not to a case where the effect of the granting or discharging of the rule is dispositive of the entire case—in that, its action is tantamount to the rendering of a final judgment.” See, also, Eames v. Stiles, 31 Id. 490; Defiance Fruit Co. v. Fox, 76 Id. 482, and McAdams v. Mundy, 79 Id. 480.
From these authorities it can be stated as a general rule that an order overruling a motion to set aside service of summons is a mere interlocutory order from whicli an appeal will not lie; but an order setting aside the service of summons is appealable, since it is in the nature of a finaL judgment and determines the action.
The plaintiff contends that the order setting aside the service of process was erroneously granted because, first, there was no legal evidence to support it; second, the evidence with respect to the residence or usual place of abode of defendant was contradictory, inconsistent and untrustworthy; third, the statute does not provide that process be served upon any designated person, but merely directs that it be “left” at the usual place of abode, and fourth, the return of the sheriff is conclusive.
As the defendant was not. served personally, the question to be determined by the Circuit judge was, where was defendant’s place of abode on February 6th, 1915, and if there was evidence to support his finding, this will answer the first three contentions of the plaintiff.
The testimony taken under the rule shows that defendant
Abode is one’s fixed place of residence for the time being— the place where a person dwells. 1 C. J. 306.
In Mygatt v. Coe, supra, under the authority of which the Circuit judge set aside the service, it was held that the dwelling-house or usual place of abode of a defendant within the meaning of the statute, is the place where he is actually living at the time when the service is made.
It will be noticed that the statute at that time included the word “dwelling-house,” but the present statute omits it, which tends to strengthen the decision.
In Feighan v. Sobers & Son, 84 N. J. L. 575, it was held that where a defendant has a general place of abode in this state, but closes it, and is absent from the state, he has no usual place of abode in this state within the meaning of the statute, and service at such place during his absence is invalid.
The Circuit judge found, as a fact, that the place of abode of the defendant at the time of service of summons was at the Hotel St. George, in Brooklyn.
She may have fled from this state because of the letter from plaintiff’s attorney threatening suit for alienation of the affections of plaintiff’s husband. It makes no difference what her motive was; it is sufficient if her usual place of abode was, not where the writ was left. Counsel for appellant seems (o consider that this court will weigh the evidence pro and con on the question of the residence of the defendant at the time of the alleged service of summons, and if we find it preponderates in favor of the conclusion that she was at that time a resident of this state and lived at the place specified in the return, that we will reverse (he rule absolute. It is not necessary to examine the testimony except for the purpose of discovering whether there was any evidence to support the adjudication, and that there was is clear.
As to the fourth contention of the plaintiff, that the return of the sheriff is conclusive, the statute itself (3 Comp. Stat., p. 4066, § 50) recites: “The return of the officer serving any process may in the same action be shown to be untrue, by either of the parties.”
The return made by a sheriff upon a capias is conclusive upon him, and also, in the cause, upon the parties, except on an application to amend it or set it aside. Loewenthal v. Wagner, 68 N. J. L. 214.
A sheriff’s return of a writ “served,” is not. conclusive as to time and place of service, which may, by affidavit, be shown to be illegal. Chapman v. Cumming, 17 N. J. L. 11.
A return may only be impeached by a direct proceeding instituted for that purpose, and there are many authorities which maintain that a return is conclusive upon the parties to a. suit, and that the only remedy for a, false or incorrect
Opposed to the common law rule is the more liberal rule which permits the return to- be impeached by affidavit, or otherwise, in a direct proceeding brought for that purpose, such as a motion to dismiss the action or to set aside the return, or to vacate a judgment by default based thereqn, but the proof necessary to overthrow the return must be clear and unequivocal. 32 Cyc. 516, citing, among many cases, Wendell v. Mugridge, 19 N. H. 109, which holds that a recital in a sheriff’s return of service as to the usual place of 'abode of defendant is not conclusive. Also Chapman v. Cumming, supra.
As there was evidence to support the adjudication, the appellant must point out some legal error committed by the trial judge, and this she has failed to do.
The order appealed from will be affirmed.
For affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams, Taylor, JJ. 15.
For reversal—Hone.