Citation Numbers: 69 A.2d 219, 5 N.J. Super. 371
Judges: The opinion of the court was delivered by JACOBS, S.J.A.D.
Filed Date: 11/17/1949
Status: Precedential
Modified Date: 4/9/2017
This is an appeal from an order entered in the Chancery Division vacating the service of writ of ne exeat and summons and complaint upon the defendant.
The plaintiff and defendant were married in 1946 and resided in Jersey City in a three room apartment occupied by the defendant's parents. In November, 1947, the plaintiff obtained a decree of separate maintenance. Early in 1948 the plaintiff instituted contempt proceedings and the defendant applied for revision of the amount payable under the decree. In February, 1948, the defendant's employment in New York City terminated and he left for Arkansas where he remained until the latter part of May, 1948. While in Arkansas, he obtained a divorce. Thereafter, he returned to New York City where he was re-employed by his former *Page 373 employer. He remarried and has been living with his present wife in New York City since July, 1948.
In October, 1948, upon the complaint of the plaintiff, the defendant was indicted in New Jersey for desertion. In January, 1949, the plaintiff filed an affidavit alleging that she is informed that the defendant has remarried and resides in New York City and praying that a writ of ne exeat issue to restrain him from departing out of the jurisdiction of the court. On the basis of this affidavit, the court on January 6, 1949, ordered that a writ of ne exeat be awarded against the defendant. The writ, together with a summons and complaint seeking nullification of the Arkansas divorce, were served upon the defendant while he was in New Jersey to plead to the indictment returned against him. Thereupon, the defendant moved to set aside service on the ground that he was exempt under the established rule that a nonresident party to a suit "while necessarily going to, staying at or returning from the court, whether civil or criminal, is privileged from the service of a summons or of a capias in a civil action." Herman v. Arndt,
We assume, as the plaintiff contends, that she should prevail on her appeal if the defendant was domiciled in New Jersey at the time of the service upon him. See Kutschinski v. Kutschinski,
We find, as did the Chancery Division, that the defendant was not a resident of this State when service was effected upon him while within this State to plead to his indictment, that under the circumstances he was privileged from such service, and that it must be set aside. See Cook v. Cook,
The order entered below is affirmed. *Page 375