Allen v. Plowman

Ely, D. C. J. It appears that the summons in the above matter was served upon the public highway in Rutherford, New Jersey, in the proximity of the municipal building. At the time of the service of summons, the defendant had been summoned to the Police Court of Rutherford, New Jersey, and was answering such process, which arose out of an automobile accident which occurred in Rutherford, New Jersey. The process in this suit, of which service the defendant seeks to set aside, arises out of the same automobile accident. It further appears that the defendant is a resident of New Jersey. Counsel for the defendant cites several eases as authority for his motion to set aside the service of summons. In each of these cases it appears that the defendant was a non-resident of New Jersey and was in the jurisdiction of this state as witness. I do not feel that the same rule applies where the defendant is a resident of the state. In Massey v. Colville, [252] 45 N. J. L. 119, the court held the rule to be different in so far as a resident of the state was concerned. This distinction has been further upheld in Kutchinski v. Kutchinski, 112 N. J. Eq. 341; 164 Atl. Rep. 560, and Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643. The rule of law in such cases is, that as to a resident served while outside his home county, the immunity is only partial, or conditional, and it appears that it lies in the discretion of the court as to whether it will create any great inconvenience to the defendant to attend at the place where venue is laid in the summons. I do not feel that the defendant will be put to any great inconvenience in these days of modern transportation by attendance at court in an adjoining county that is within ten miles of his residence. I will, therefore, deny the motion. Motion made why writ of certiorari should not issue was denied.