Opinion
07-31-1906
LANNING v. TWINING et al.
John S. Applegate, for complainant. Sherrerd Depue, for defendants.
Suit by John E. Lanning, as receiver, etc., against Albert C. Twining and others. On demurrer to pleas. Demurrer overruled.
John S. Applegate, for complainant. Sherrerd Depue, for defendants.
STEVENS, V. C. This is a suit against the directors of the Monmouth Trust & Safe Deposit Company, to recover money lost by reason of their negligent and improper conduct. The defendants White & Vreeland have put in pleas to the jurisdiction, alleging that they are not residents of this state; that they have not been served with process, and that they have not been notified otherwise than by publication and mailing. The question is whether the pleas are a defense. Complainant argues that they are "premature;" that want of jurisdiction cannot be interposed at this stage of the proceedings. The Court of Appeals, in Wilson v. Amer. Pal. Car Co., 65 N. J. Eq. 730, 55 Atl. 997, has held otherwise. The contention is without merit, and the case on this branch of it is not arguable.
It is further contended, or rather suggested, that the directors of a New Jersey corporation, stand in respect of the protection guarantied by the federal Constitution upon a different footing from ordinary defendants. No case is cited in support of this proposition and it seems to be unsound. The Legislature has not attempted to put nonresident directors, when they are sued for negligence, on any different footing; in respect of service of process, from any other class of persons, when so sued. It has not sought to compel them to waive their constitutional privilege, as a prerequisite to holding corporate office. The distinction made by the Supreme Court of the United States is between suits in personam and suits in rem or quasi in rem. Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372; Elsassor v. Haines, 52 N. J. Law, 10, 18 Atl. 1095; Smith v. Colloty, 69 N. J. Law, 365, 55 Atl. 895; Elmendorf v. Elmendorf, 58 N. J. Eq. 113, 44 Atl. 164; Watkinson v. Watkinson, 67 N. J. Eq. 142, 58 Atl. 384; Hill v. Henry (N. J. Ch.) 57 Atl. 554; Andrew v. G. & Q. Ry. Co. (N. J. Ch.) 60 Atl. 568; Wilson v. Car Co., supra. This is admitted to be a suit purely in personam, and I am quite unable to understand why the fourteenth amendment does not apply.
I think the pleas are good.