Bogan v. Progressive Home Building Ass'n

Supreme Court of New Jersey

Bogan v. Progressive Home Building Ass'n

112 A. 861, 95 N.J.L. 346, 10 Gummere 346, 1921 N.J. Sup. Ct. LEXIS 84

DecidedMarch 9, 1921

StatusPublished

This text of 112 A. 861 (Bogan v. Progressive Home Building Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bogan v. Progressive Home Building Ass'n, 112 A. 861, 95 N.J.L. 346, 10 Gummere 346, 1921 N.J. Sup. Ct. LEXIS 84 (N.J. 1921).

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Opinion

The opinion oi the court was delivered by

Minturn, J.

Judgment was entered as above, in a suit in which the summons was directed to “F. N. Vital, President Progressive Home Building Association.” The state of demand was entitled against tire association. The judgment record and the certificate of the clerk returned are against “F. N. Vital, Prest., etc.,” as defendant; and the agreed state of the case is likewise entitled. At the close of the plaintiff’s case a motion for a nonsuit was made on the ground that the testimony showed a contract with -the association, and that the summons was directed to “F. N. Vital,” as president, and therefore Vital enty and not the association was in court, which motion was refused. That contention presents the only question on this appeal. We think the contention of the respondent was correct; that Vital, individually, was summoned [347]*347and was the only party legally in court. So far as the defendant association is concerned, it was not brought into court by process, and there is no proof in the ease that it consented to appear and he represented by the appellant’s attorney.

In such a form of action the legal presumption is that the intention is to enter judgment against the individual defendant, since the rest of the titular designation may he considered merely discriptio personam. New Brunswick Steamboat Co. v. Tiers, 24 N. J. L. 697; 20 R. C. L. 700, and cases.

The rule is fundamental that when a proceeding is strictly in personam, brought to determine the personal rights and obligations of the parties, personal service within the state or a voluntary appearance in the case is essential to the acquisition of jurisdiction, so as to constitute compliance with the constitutional requirement of due process of law. D’Arcy v. Ketchum, 11 How. (U. S.) 174; Pennoyer v. Neff, 95 U. S. 714; Wilson v. Seligman, 144 Id. 41.

So far, therefore, as the association is concerned, it was comm non judice, and a judgment against it under such circumstances was necessarily a nullity. Bowen v. Mulford, 10 N. J. L. 230; Terhune v. Parrott, 59 Id. 16; 15 R. C. L. 771, and cases cited.

The judgment will therefore be reversed.

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The opinion oi the court was delivered by

Minturn, J.

Judgment was entered as above, in a suit in which the summons was directed to “F. N. Vital, President Progressive Home Building Association.” The state of demand was entitled against tire association. The judgment record and the certificate of the clerk returned are against “F. N. Vital, Prest., etc.,” as defendant; and the agreed state of the case is likewise entitled. At the close of the plaintiff’s case a motion for a nonsuit was made on the ground that the testimony showed a contract with -the association, and that the summons was directed to “F. N. Vital,” as president, and therefore Vital enty and not the association was in court, which motion was refused. That contention presents the only question on this appeal. We think the contention of the respondent was correct; that Vital, individually, was summoned [347]*347and was the only party legally in court. So far as the defendant association is concerned, it was not brought into court by process, and there is no proof in the ease that it consented to appear and he represented by the appellant’s attorney.

In such a form of action the legal presumption is that the intention is to enter judgment against the individual defendant, since the rest of the titular designation may he considered merely discriptio personam. New Brunswick Steamboat Co. v. Tiers, 24 N. J. L. 697; 20 R. C. L. 700, and cases.

The rule is fundamental that when a proceeding is strictly in personam, brought to determine the personal rights and obligations of the parties, personal service within the state or a voluntary appearance in the case is essential to the acquisition of jurisdiction, so as to constitute compliance with the constitutional requirement of due process of law. D’Arcy v. Ketchum, 11 How. (U. S.) 174; Pennoyer v. Neff, 95 U. S. 714; Wilson v. Seligman, 144 Id. 41.

So far, therefore, as the association is concerned, it was comm non judice, and a judgment against it under such circumstances was necessarily a nullity. Bowen v. Mulford, 10 N. J. L. 230; Terhune v. Parrott, 59 Id. 16; 15 R. C. L. 771, and cases cited.

The judgment will therefore be reversed.

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112 A. 861, 95 N.J.L. 346, 10 Gummere 346, 1921 N.J. Sup. Ct. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bogan-v-progressive-home-building-assn-nj-1921.

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