The opinion of the court was delivered by
The defendants moved to dismiss the plaintiff’s complaint on the ground that summons was not issued in time or properly served upon them; the motion was denied by the Law Division and appeal to the Appellate Division was taken under R. R. 2:2-3 (a) (3). We certified on our own motion. R. R. 1:10-1.
The defendants named in the complaint are Ered C. Taylor, Clarence W. Taylor, Greyton H. Taylor, Flora T. Keeler and Lucy T. Zimmer, individually and trading as The Taylor Wine Company. They are partners engagеd in the wine business in the State of New York where they all reside. They applied to the New Jersey Division of Alcoholic Beverage Control for a wine wholesale license; in their application they stated that no licensed premises would be maintained by them in New Jersey and designated Bernard Best, 428 Leslie Street, Newark 8, New Jersey as the “authorized agent” upon whom “service of process may be made.” They received a license and sold wine to New Jersey retail licensees, including the plaintiff, X-L Liquors, Inc., a corporation of New Jersey having its principal place of business in Newark. Thereafter they apparently served and filed with the Division, pursuant to its Regulations No. 39, a notice that the plaintiff had defaulted in making payment for wine it had purchased and the plaintiff was consequently placed on the Division’s “Official Default List.” The plaintiff alleged in its complaint that the notice was served and filed “without warrant or cause, negligently and maliciously”; that the matters published or caused to be published by the
Under date' of March 11, 1954 the plaintiff forwarded to the sheriff’s office six copies of summons with complaint attached and on March 15, 1954 they were all served on Bernard Best personally. Thereafter the defendants moved to dismiss thе complaint primarily on the ground that the court had “no jurisdiction over the defendants or any of them”; they also placed reliance on the point that the new summons was not served in due time after the filing of the complaint or the issuance of the mandate. See B. B. 4:4-l; B. B. 4:42-2(a). The Law Division denied the motion and entered an order settling the record under B. B. 1:6-3. In support of their appeal the defendants urge: (1) that their designаtion of Best as authorized agent for the service of process was designed solely for the benefit of the Division and did not constitute him “an agent for the service of process in civil matters”; (2) that if the designation is held to be available in civil matters “it is an illegal and invalid exercise of the rule making power”; (3) that the summons “did not issue within ten days after the filing of the complaint” and its service was therefore not sustainable; and (4) that the “service attempted upon a partnership as such is void.”
The commissioner and his successors adopted many regulations pertaining to liquor licensees and their business; these regulatiоns were sustained as being reasonably related to the broad purposes of the act even where they dealt with subjects not specifically mentioned therein. Thus in
Gaine v. Burnett, 122 N. J. L.
39
(Sup. Ct.
1939), affirmed 123
The Alcoholic Beverage Control Act
(L.
1933,
c.
436;
B. S.
33 :1 — 1
et seq.)
contained no specific reference to applicants who did not propose to maintain licensed premises in New Jersey; and pertinent provisions, such as the requirement for advertising in a local newspaper
(B. S.
33:1-25), suggested the legislative contemplation that licensees would ordinarily maintain places of business within the State which would be amenable to local residents and interests for all proper purposes. When confronted with out-of-state concerns who desired the privilege of selling alcoholic beverages to New Jersey licensees without establishing any local places of business, the commissioner fairly adopted procedures which enabled them to designate New Jersey residents as authorized agents for the service of process and to advertise in the particular localities where the agents resided. It is highly significant that the designation was in nowise limited to proceedings instituted by the department — now the Division of
We are satisfied that the department had ample statutory power (which it properly exercised) to require that the dеfendants designate a resident agent for the service of process in legal proceedings, including civil actions based on alleged wrongs committed in the course of their activities within New Jersey. Furthermore, the defendants are hardly
“Here the ‘consent’ has been exacted by the State — not voluntarily offered by the defendant. That does not detract from its validity. Except as limited by the Constitution of the United States each State may exclude foreign corporations from doing business (Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451), or it may exact from a foreign corporation as a condition of doing business a consent to accept service of process in specified manner or upon a specified public officer in а specified place and with specified effect. Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93, 37 S. Ct. 344, 61 L. Ed. 610; State of Washington [ex rel. Bond & Goodwin & Tucker] v. Superior Court, 289 U. S. 361, 53 S. Ct. 624, 77 L. Ed. 1256, 89 A. L. R. 653. A designation of a public officer upon whom service may be made has the same effect as a voluntary consent. Bagdon v. Philadelphia & Reading C. & I. Co., 217 N. Y. 432, 111 N. E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389; Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165, 60 S. Ct. 153, 84 L. Ed. 167, 128 A. L. R. 1437. A foreign corporation filing such designation or consent cannot complain that the courts of the State have given a broader constructionto such consent than the cоrporation intended, if its language ‘rationally might be held to go to that length.’ Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., supra, 243 U. S. page 95, 37 S. Ct. page 345, 61 L. Ed. 610. The condition imposed in this ease is reasonable and in no wise discriminates in favor of domestic corporations against foreign corporations.”
In the light of all of the foregoing it is evident that, in the civil action before us, legal service on the defendants could effectively be made by service on their agent Bernard Best. See
B. B.
4:4-4(a). If the original service had been made personally on Bernard Best, with sufficient copies for all of the defendants, the plaintiff would have avoided much of the delay which has ensued and would have forestalled the rather technical procedural points which have been advanced. But, be that as it may, the Appellate Division set aside the original servicе and for present purposes we shall assume that its decision was correct.
Cf. R. R.
4:4-4;
Schnitzer and
Wildstein,
N. J. Rules
Service, A IV-50, 52 (1954). But see
Koninklijke Luchtvaart Maatschappij N. V. v. Curtiss-Wright Corp.,
17
F. R. D.
49
(D. C. S. D. N. Y.
1955). The subsequent service was admittedly made on Bernard Best personally and he received enough copies for all of the defendants; nevertheless, the defendants urge that the plaintiff’s complaint should be dismissed because this service was not made in conformity with
R. R.
4
:4-1
and
B. B.
4:42-2(a). These rules contemplate that summons shall issue within ten days after the complaint; otherwise the court may in its discretion dismiss the action. They are designed to insure that after the plaintiff has filed his complaint he will diligently cause the summons to be issued so that the defendant will be advised of the complaint and be afforded early opportunity to answer or take such other steps as he considers appropriate. In the instant mattеr the defendants’ agent received a copy of the complaint within ten days after its filing and it was presumably forwarded without any delay to their New York counsel. Thereafter the defendants had the original service set aside by the Appellate Division, but new service was effected about a month
“It is said that lawyers and even great judges display reluctance ‘to let the past go.’ Clark, The Handmaid of Justice, 23 Wash, U. L. Quar. 297, 311 (1938). Thus it may be noted that despite our modern judicial system and rules there appears to have been little letup in procedural contentions unrelated to the merits which, though mostly unfruitful, have involved considerable wastage; indeed, it has recently been estimated that almost half of our reported opinions, while disposing of the merits, have also dealt with questions of procedure. Schnitzer, supra. Procedural rules should not in themselves be the source of any extensive litigation (Vanderbilt, The New Rules of the Supreme Court on Appellate Procedure, 2 Rutgers L. Rep. 1, 18 (1948)) ; they should be subordinated to their true role, i. e., simply a means to the end of obtaining just and expeditious determinations between the parties on the ultimate merits. Ciocca v. Hacker, 4 N. J. Super. 28, 33 (App. Div. 1949) ; Hogan v. Hodge, 6 N. J. Super. 55, 59 (App. Div. 1949). It seems to us that sympathetic observance of the foregoing by all the parties in the instant matter might well have avoided needless litigation and enabled the fair and final disposition of the entire controversy in the County Court, perhaps even before this date.”
The final contention advanced in support of the appeal is that the service upon the “partnership as such” was void. It is true, as the defendants point out, that the common law did not recognize the separate existence of partner
“Under existing law, a partnership may not sue or be sued in the partnership name, but may sue or be sued only in the respective names of its individual members. The rule that a partnership may not sue or be sued in its partnership name is merely a useless relic of the strict procedural rules at common law with nothing, appаrently,to justify its continued existence. The common law rule derives from the legal conception of the partnership as simply a group of individuals. It is particularly undesirable in actions against partnerships because it places upon the plaintiff, the burden of ascertaining the individual members of a partnership and naming them as defendants.” Eleventh Annual Report of the Judicial Council of the State of New York 224 (1945).
Pursuant to the council’s recommendation, New York’s Civil Practice Act was amended to provide that partners may sue and be sued in the partnership name. See
Ruzicka v. Rager,
305
N. Y.
191, 111
N. E. 2d
878, 881 (1953), where the Court of Appeals stated that the legislative purpose was to rid New York’s “procedure of the restrictive niceties, grounded in early common-law pleading” and that comparable statutes had been construed by other courts as “reсognition of partnerships as legal entities for procedural purposes.” In our own State this court has, under its constitutional rule-making power, adopted a rule indicating that for procedural purposes all partnerships may be considered as entities suable in their firm names. See
R. R.
4:4r-4(e) which provides unconditionally that summons and complaint may be served “upon a partnership” by serving a partner or а managing or general agent or an officer. Where service on the. partnership alone is sought to be made by serving its agent, any resulting
In the instant matter the complaint contained no specific allegation that the plaintiff was proceeding against the partnership as an independent entity along with its individual partners; nevertheless, it was apparently so intended and understood by the parties.
Cf. Porter v. Hardin,
164
F. 2d
401, 402
(5th Cir.
1947);
Darby v. Philadelphia Transp. Co.,
73
F. Supp.
522, 523
(D. C. Pa.
1947). Thus the six copies оf the summons and complaint which were actually served were intended for the partnership and the five individual defendants. The sheriff’s return of service stated that he had made service upon the five individual defendants “and upon The Taylor Wine Company”; and in the course of their appeal, the defendants have unsuccessfully urged that such service on the partnership was void. In the light of our position that the plaintiff’s рersonal service upon
Affirmed.