Wangler v. Harvey

196 A.2d 513, 41 N.J. 277, 1963 N.J. LEXIS 154

• Court: Supreme Court of New Jersey
• Decided: December 16, 1963
• Status: Published

Opinions

The opinion of the court was delivered by

Schettino, J.

On October 16, 1962 defendant, executor and a beneficiary of his father’s estate, was in the Mercer County Court House at the trial of a suit instituted by plaintiff against defendant as executor of the estate. As defendant was a nonresident, the suit was instituted by serving process upon the surrogate pursuant to the power of attorney required to be filed with the surrogate. N. J. 8. 3A:12-14. While standing outside the courtroom, he was served with a summons and complaint in the present action which named him as defendant in his individual capacity.

Both actions arose out of an incident which occurred on premises owned by the father at the time of his death and devised to defendant and another subject to a life estate in decedent’s widow. Plaintiff, a licensed real estate broker, alleges that she was injured while being escorted by defendant through the premises in question. Plaintiff was viewing the premises as preliminary to her attempts to sell them.

The trial court granted a motion by defendant to quash service of the summons on the ground that as a nonresident he was immune from such service since he was attending court proceedings. Plaintiff appealed. We certified the matter on our own motion before argument in the Appellate Division. R. R. l:10-l(a).

The rule that a litigant is immune from service of process while attending court has ancient roots. The Year Books reveal that as early as Henry VI the immunity rule was originally conferred on and limited to residents. Hatch v. Blissett, 93 Eng. Rep. 338 (1714). Subsequently, the rule was extended to nonresidents, Walpole v. Alexander, 99 Eng. Rep. 530 (1782), and finally limited to the latter group. See Fisher v. Bouchelle, 134 W. Va. 333, 61 S. E. 2d 305 (Sup. Ct. App. 1950). The rule in its inception was limited to exemption from arrest, 33 Harv. L. Rev. 721, 722 (1920), but it has now been enlarged to encompass all forms of civil process. “Immunity of Hon-Resident Participants in Judicial Proceeding from Service of Process — A Proposal for Renovation,” 26 Ind. L. J. 459 (1950-51). The privilege, at first described as that of the courts, is now frequently regarded as belonging to the litigants as well. Whited v. Phillips, 98 W. Va. 204, 126 S. E. 916, 40 A. L. R. 83 (Sup. Ct. App. 1925).

In New Jersey as early as 1817, Halsey v. Stewart, 4 N. J. L. 366 [Reprint 426] (Sup. Ct. 1817), held that nonresidents were immune from civil process while necessarily going to, staying at or returning from court proceedings in New Jersey. The court stated the reasons behind the doctrine of immunity at page 427:

“* * * Courts of justice ought, everywhere, to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them. The citizen, in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach them, not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. He should also be enabled to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights. Now, this great object in the administration of justice would, in a variety of ways, be obstructed, if parties and witnesses were liable to be served with process while actually attending the court. It is often matter of great importance to the citizen to prevent the institution and prosecution of a suit in any court at a distance from his home and his means of defense; and the fear that a suit may be commenced there by summons will as effectually prevent his approach as if a capias might be served upon him.”

Halsey thus based the immunity rule on two grounds: courts of justice must be accessible to all and protect those who approach them; and judicial administration must be free from the interruptions which will be caused by service of process. As pointed out by Mr. Justice Jacobs in Korff v. G & G Corp., 21 N. J. 558, 563-564 (1956), Halsey followed earlier English precedents and has been adhered to by many later decisions both in New Jersey and elsewhere. 42 Am. Jut., Process, § 143 (1942). Later cases added additional reasons to buttress the rule: the doctrine is necessary to preserve the dignity of the court, Randall v. Randall, 14 N. J. Super. 110 (Ch. Div. 1951); the doctrine encourages attendance of persons necessary to the exercise of the judicial function, Massey v. Colville, 45 N. J. L. 119 (Sup. Ct. 1883); and finally the doctrine is grounded on sound public policy, Michaelson v. Goldfarb, 94 N. J. L. 352 (Sup. Ct. 1920).

The doctrine, although once narrowly limited to arrest cases, has undergone a rather significant expansion despite warnings that it should not be enlarged beyond the reasons upon which it was founded. Lamb v. Schmitt, 285 U. S. 222, 52 S. Ct. 317, 76 L. Ed. 720 (1932); Keeffe and Roscia, “Immunity And Sentimentality,” 32 Cornell L. Q. 471 (1947); 26 Ind. L. J. 459, supra. In Greer v. Young, 120 Ill. 184, 11 N. E. 167, 168 (Sup. Ct. 1887) the court emphasized the limited nature of the doctrine:

“The arrest of a party to a suit by civil process being regarded as a breach of the defendant’s privilege, the usual course was to appear in the cause in which the arrest was made, and procure a rule against the plaintiff and his attorney to show cause why the defendant should not be discharged out of custody by reason of his alleged privilege, upon his filing common hail. The rule to show cause was always supported by affidavit setting up the fact of the arrest, and attendant circumstances. On the hearing the rule, depending upon the proofs, was either made absolute or discharged. If the former, the defendant, upon filing common or nominal bail, was discharged. And, if he had given special bail, the bail-bond was ordered to be surrendered and canceled. Nevertheless, the defendant was in court, and was hound to answer the action." (Latter emphasis added)

It has been said that the exemption is not a natural right but is, on the contrary, in derogation of the common law-right of a creditor to sue his debtor wherever defendant may be found. 42 Am Jur., Process, § 139. See also Paul v. Stuckey, 126 Ark. 389, 189 S. W. 676, L. RT. A. 1917B, 888 (Sup. Ct. 1916); Murrey v. Murrey, 216 Cal. 707, 16 P. 2d 741, 85 A. L. R. 1335 (Sup. Ct. 1932), certiorari denied 289 U. S. 740, 53 S. Ct. 658, 77 L. Ed. 1487 (1933); Moseley v. Ricks, 223 Iowa 1038, 274 N. W. 23 (Sup. Ct. 1937); Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962, 27 L. R. A., N. S., 333 (Ct. App. 1910). The tendency in some jurisdictions has been to restrict the privilege. Nelson v. McNulty, 135 Minn. 317, 160 N. W. 795 (Sup. Ct. 1917); Greenleaf v. People’s Bank, 133 N. C. 292, 45 S. E. 638, 63 L. R. A. 499 (Sup. Ct. 1903). Indeed, we have recently expressed dissatisfaction with the immunity rule. Korff, supra; cf. Grober v. Kahn, 76 N. J. Super. 252 (Ch. Div. 1962).

The Supreme Court of Rhode Island in Baldwin v. Emerson, 16 R. I. 304, 15 A. 83 (1888), rejected the majority view stating:

“The question whether a party in attendance upon a court in the prosecution or defense of a suit is privileged from the service of a summons for the commencement of a suit against him is one upon which there has been a contrariety of decision. The general rule relating to protection from the service of process is that all persons who have any relation to a cause which calls for their attendance in court are protected from arrest while going to and attending court and returning. This protection, however, is not wholly, nor chiefly, the privilege of the person, but is granted in the interest of the public, that the courts may not be embarrassed or impeded in the conduct of their business. Hence it has generally been held that the protection is limited to exemption from arrest, and does not extend to the service of process, which does not interfere with or prevent the attendance of the person upon the court, [citations] In Hayes v. Shields, 2 Yeates, 222, and Miles v. McCullough, 1 Bin. 77, however, it was held that exemption should be granted from summons as well as arrest; the reasons assigned in the former case being that the party’s attention to his own business in the suit depending would be distracted by the service, and he might be subjected to the inconvenience of attending an action at a distance from his place of abode, contrary to the wise indulgence of the law. In some of the eases the question whether non-residents of the state attending court are entitled to protection from the service of a writ by summons for the commencement of a suit has been considered, [at p. 83] ******* *

While we concede the force of the reasons advanced for protecting non-resident witnesses from the service of a summons against them for the commencement of a suit, eundo, morando, et redeundo, we are not convinced of the sufficiency of the reasons assigned for the exemption of non-resident suitors from such process. We think it would rarely happen that the attention of a non-resident plaintiff or defendant would be so distracted by the mere service of a summons from the immediate business in hand in prosecuting or defending a pending suit that the interests of justice would suffer in consequence, or that the liability to such service would often deter them from prosecuting or defending their just claims or rights. The reasons assigned for the exemption would apply equally as well to resident as to nonresident suitors, and it has never been deemed necessary to exempt resident suitors from the service of a summons, so far as we have been able to find, except in the single state of Pennsylvania. We think these reasons are fanciful, rather than substantial. We are of the opinion, therefore, that a non-resident suitor attending court in the prosecution of a suit is not exempt from the service of a summons against him in another suit.” [at pp. 84r-85]

We agree that the reasons for the rule are more fanciful than real.

Unquestionably a principle which favors free access to our courts is a salutary one. But as stated in 26 Ind. L. J., supra, at p. 459: “One of the anachronisms of our present ‘procedural’ law is the favoritism, quite singular in Anglo-American jurisprudence, with which a nonresident who enters a state to participate in a judicial proceeding is clothed.” The principle of immunity allows a nonresident to defend suits in our State without subjecting himself to another suit, while it prevents a resident defendant from claiming such protection. Historically, both categories of defendants would be protected, but today the resident defendant is not. Fisher, supra, 61 S. E. 2d, at pp. 307-308.

We are not impressed by the argument that the immunity rule prevents disruption of judicial administration in that the service of the summons distracts a suitor and deters him from adequately protecting his interests. Admittedly, such process causes some distraction, but the distraction will occur whether the party served is nonresident or resident. We no longer consider such distraction a basis for granting immunity to residents and we can see no reason for making a distinction because of nonresidency.

That immunity was necessary to maintain the dignity of the court was historically well-founded, for an arrest of a litigant for whom the court was waiting would adversely affect the functions of a court. In that sense the court’s dignity might be offended. However, see Keeffe and Roscia, supra, 32 Cornell L. Q., at p. 477. But when physical restraint is not involved in the service of a summons, there can be no conflict with the dignity of any court.

The most persuasive argument for the immunity rule is that the privilege is granted to encourage attendance of litigants whose appearances are necessary to the trial of the cause. 42 Am. Jur., Process, § 142. It is argued that unless immunity is granted to a litigant, he might be deterred from attending through fear of being subjected to new litigation. Thus, the court’s search for truth might be frustrated and an injustice might result.

In the case of the nonresident plaintiff, the inducement to sue in a foreign jurisdiction is the hope of obtaining judgment, not immunity. The forum is his choice and it is his own interest which causes him to come. No sound reason has been advanced why he should receive a special treatment not accorded a resident plaintiff. See Korff, supra, 21 N. J. 558; Grober, supra, 76 N. J. Super. 252.

As to the nonresident defendant, he too is not motivated by altruism but rather bj¹, the desire to defend the action. He has exercised a choice. His appearance is governed by selfish —although proper—considerations. He must decide whether the pains of other litigation are more severe than the rigors of a default judgment in the first suit.

The final argument used to support the immunity rule is “public policy.” Eew decisions in the immunity area have defined the meaning of that phrase. Generally speaking, the public policy reference would seem to be nothing more than a catch-all manner of enunciating all the arguments previously noted.

Conversely, we note that the granting of immunity conflicts with several important policy considerations. As noted above, an exemption from process derogates the right of a creditor to subject his debtor to suit in any jurisdiction where he may be found. Netograph Mfg. Co. v. Scrugham, supra, 90 N. E., at p. 963. Furthermore, the immunity shifts the burden of traveling to a foreign jurisdiction from the nonresident to the resident party.

The doctrine of immunity moves in a direction wholly inconsistent with today’s concept of justice. We have not hesitated to correct legal doctrines in the light of modern needs. In State v. Culver, 23 N. J. 495, 505 (1957), we said:

“One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Dean Pound posed the problem admirably in his Interpretations of Legal History (1922) when he stated, ‘Law must be stable, and yet it cannot stand still.’ ”

We conclude that the problem of immunity is best disposed of by the application of the doctrine of forum non conveniens. Under this concept a court can prevent the imposition upon its jurisdiction of the trial of causes when it determines that for convenience of the litigants and witnesses, and in the interest of justice, the action should be instituted in another forum. The doctrine presupposes at least two forums in which the defendant is amenable to process and furnishes criteria for a choice between such forums. Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). The concept is well established in New Jersey. We have recognized that the doctrine is principally concerned with preventing harassment and vexation to the defendant, Gore v. United States Steel Corp., 15 N. J. 301 (1954), cert. denied 348 U. S. 861, 75 S. Ct. 84, 99 L. Ed. 678 (1954); Vargas v. A. H. Bull Steamship Co., 25 N. J. 293 (1957), cert. denied 355 U. S. 958, 78 S. Ct. 545, 2 L. Ed. 2d 534 (1958), but, as pointed out by Chief Justice Weintraub in Starr v. Berry, 25 N. J. 573, 587 (1957): “It is not enough that a defendant will be seriously inconvenienced; it must also appear that a transfer will not result in significant hardship to the plaintiffs.”

Pursuant to the usual practice under a motion to dismiss based on forum non conveniens, the granting of immunity will be considered an exception rather than the rule. The court will retain jurisdiction unless there is an affirmative showing that it would violate traditional concepts of fair play and substantial justice to subject the defendant to its jurisdiction. If unfairness is shown, the court might dismiss outright or condition its dismissal upon certain assurances by the defendant. Vargas, supra, 25 N. J., at p. 295.

A point is made that the revision of the immunity rule should be prospective in its application. Such a contention would seem to be based on a concept of reliance. We find the suggestion without merit in the present case. It is doubtful that any defendant could justifiably rely on the rule after the expressions of dissatisfaction with the immunity concepts which appear in Korff and Grober, supra. In any event there is nothing in the record to indicate that the defendant did place any actual reliance on the doctrine. Under such circumstances there is no reason for declining to apply the usual rule under which the overruling of a decision has retrospective effect. See Dalton v. St. Luke’s Catholic Church, 27 N. J. 22, 26 (1958); Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N. J. 47, 49 (1954).

We do not foreclose an inquiry in the present case as to whether the suit commenced against defendant in his capacity as executor was a device to lure the defendant into the jurisdiction. If this was the purpose of the first suit, as the defendant’s brief suggests, the trial court should dismiss this action. Williams ads. Reed, 29 N. J. L. 385 (Sup. Ct. 1862); 33 Harv. L. Rev., supra, 722.

Reversed and remanded.

1 On December 9, 1963 the Court amended R. R. 4:4-4 by adding a new subsection as follows:

“(d) Whenever it shall appear by affidavit of the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding paragraphs of this rule, then, consistent with due process of law, service may be made by mailing, registered mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode. Where service is attempted to be made by registered mail but the same is not effected, either by reason of the addressee refusing to accept delivery or if for any reason delivery cannot be made, then service may be made outside the State as provided in Rule 4:<M>(a) upon any person upon whom service is authorized by the law of this State or of the state wherein service is effected.” The new rule becomes effective on January 2, 1964.