Wohlegmuth v. 560 Ocean Club

Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 695 A.2d 345 (App.Div.1997) the suit was brought against a partnership and an employee of the partnership who was not a partner. The plaintiff purported to serve the employee by mailing him the summons and complaint by both regular and certified mail, apparently directed to him at his residence, and by causing a process server to deliver the documents to a secretary employed by the partnership at its regular place of business. No answers were filed and a default judgment was entered against both the partnership and the employee. A judgment creditor successfully executed against property of the employee. Only the employee appealed. The defendant had actual notice of the suit, but neither of the methods of service which were used complied with the applicable rules for obtaining in personam jurisdiction. The Court declared that there was no "affirmative duty on the part of a party who was improperly served to take any protective action" unless his "conduct after being notified of the action . . . estops the defendant from challenging the service of process." Id. at 311, 695 A.2d 345. Citing Garza v. Paone, 44 N.J. Super. 553, 131 A.2d 32 (App.Div.1957), for the proposition that a default judgment entered without proper service was "absolutely void and of no legal effect for any purpose," we held that, unless laches or estoppel intervened, the defective process would void the default judgment and the funds secured by execution would have to be returned. Id. at 313-14, 695 A.2d 345.