12 A.2d 127 | N.J. | 1940
This writ of certiorari brings up for review an order made by a Common Pleas judge of Mercer county directing the Board of Education of the city of Trenton to answer or otherwise plead to a complaint. The question involved is whether a party may be made a defendant in a personal action at law except by service of the initial process, i.e., a summons. The order under review resulted from the following incidents:
Grace Williams began an action for personal injuries against the city of Trenton and Florence M. Scheuren, a teacher in the public schools of Trenton. The complaint, in so far as it charged the municipality with liability, was struck out. Application was made by the plaintiff for leave to amend the complaint and join the Board of Education as a party defendant, which leave was granted. The order provided that the Board of Education "answer or otherwise plead to such amended complaint within twenty days after service." Thereupon counsel for the Board of Education appeared specially and moved to set aside the order on the ground that at the time the order was made the court had no jurisdiction over the Board of Education because "no legal process * * * had ever been issued and served upon" the said board. The court refused to vacate its order bringing in the Board of Education as a defendant. This court allowed certiorari and the return to the writ reveals the various steps in the cause, which have been outlined. We entertain no doubt about the invalidity of the order. The Practice act (R.S. 2:27-59) provides: "The first process in personal actions in *382
cases where plaintiff is not entitled to bail shall be a summons, a copy whereof shall be served on the defendant in person, or left at his usual place of abode, which service shall be made forthwith after the process is delivered to the sheriff or other officer for service." Suits in personam must be begun by the service of process (Pennoyer v. Neff,
The cases relied upon by the respondent here, principally equity cases, have no applicability. For example, in Pierce v.Old Dominion, c., Smelting Co.,
There will be a judgment for the prosecutor, with costs.