Opinion
04-26-1926
LUDINGTON DEVELOPMENT CO. v. BOGASH et al.
Wescott & Varbalow, of Camden, for the motion. Bleakly, Stockwell & Burling, of Camden, opposed.
Suit by the Ludington Development Com pany against Harry J. Bogash and another. On defendants' motion to set aside order of publication. Motion denied.
Wescott & Varbalow, of Camden, for the motion.
Bleakly, Stockwell & Burling, of Camden, opposed.
BUCHANAN, V. C. The suit is of the class known as suits for specific performance; complainant, as vendee under contract of sale, seeking to acquire the legal title to the premises comprised in the contract, which are located in this state.
The defendants Bogash and Golden, who make the present motion, are grantees subsequent to the contract. They are nonresidents of New Jersey, and have not been served with process in this state. An order of publication was made against them, and notice of such order was served upon them personally in the state of Pennsylvania, in conformity to the terms of the order of publication and the statutes and practice in that behalf for service upon nonresident defendants.
This motion, and the notice thereof, constitute the only appearance made by these defendants in the suit. In the notice and the motion they specifically limit their appearance, or attempt so to do, as "special," and "solely for the purpose of attacking the validity of the proceedings relative to the order of publication, and not appearing generally."
The motion is to vacate the order of publication (and set aside the proof of service thereof) on the ground that it was improvidently entered, because the cause of action set up in the bill of complaint is one in personam and not in rem.
No leave was obtained by these defendants from this court permitting them to make such special and limited appearance: Complainant argues that the motion should for that reason be denied, unless the appearance is, to be deemed (by reason of the failure to obtain leave for special appearance) a general appearance, constituting a complete submission by the defendants to the jurisdiction of this court.
As an alternative to this proposition, complainant suggests that the presented motion may be deemed an application for leave to appear specially, and that the application should be granted only on condition that the defendants consent that, if the motion, for which they are given leave to appear specially, be decided against them, their appearance shall be deemed, and taken to be, a general appearance and complete submission to the jurisdiction.
With regard to this last proposition, it is sufficient to say that the defendants have not asked, and are not asking, leave to appear specially. They have appeared, and their motion is to set aside the order of publication and the proof of service.
That motion must be denied. Nonresident defendants cannot object to the entry of an order of publication. Kirkpatrick v. Post, 53 N. J. Eq. 591, 32 A. 261; affirmed Post v. Kirkpatrick, 53 N. J. Eq. 641, 33 A. 1059. Nor can it be seen that they have any better right or standing to object to the filing of proofs that such order has been complied with.
Since the motion must be denied for the reason just stated, it is not necessary to consider whether or not the fact that defendants have appeared specially, without having first obtained leave so to do, would of itself require denial of their motion.
Whether or not the action which defendants have in fact taken constitutes, under all the circumstances, a general appearance is a question not now before the court.