Eeetjwd, J. A. D.
(dissenting). I am constrained to dissent from the view of the majority.
Although the majority find that there was no jurisdiction in personam over the infant defendant, Nicholas Paone, and, hence, that the judgment is absolutely void, they, nevertheless, hold it to be sheltered from attack by the provision in R. R. 4:62-2 which requires that a motion to set aside a void judgment be made within “a reasonable time.”
It is not disputed that Paone, an infant over 14 years of age at the time the suit was instituted against him, was not personally served with a copy of the summons and complaint as required by Rule 3 :4-4(&), now R. R. 4:4-4(&). Vide 2 Schnitzer and Wildstein, N. J. Rules Service, Anno.; Service upon Infants, A IV-53. The nullifying effect of such a deficiency in service is not in dispute. Speaking for a unanimous court, in Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 493 (1952), certiorari denied 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952), Chief Justice Vanderbilt stated that “The requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with. Any defects such as here present are fatal and leave the court without jurisdiction and its judgment void.” Cf. Restatement, Judgments, § 8, Comment (b), p. 46 (1942).
It is well to stress that while the present judgment does not state that effective service upon the defendant was made, it does state him to be an infant. The record is not silent on the question of service for the sheriff’s return of service states that “a member of his family [his father] * * *” was served. Accordingly, the invalidity of the judgment clearly appears upon the face of the record. A judgment invalid on its face has consistently been held by our courts to be a nullity, “a blur on the record,” and utterly void, not merely voidable. Westfield Trust Co. v. Court of Common Pleas, 115 N. J. L. 86 (Sup. Ct. 1935), affirmed 116 N. J. L. 190, 191 (E. & A. 1936); Gloucester City Trust Co. v. Goodfellow, 121 N. J. L. 546 (E. & A. 1939); Collyer v. McDonald, 123 N. J. L. 547 (Sup. Ct. 1940). It is said that “if a judgment record proclaims its own invalidity, it must be denied effect everywhere, and it is of little or no consequence whether it is formally set aside or not.” 1 Freeman on Judgments (5th ed. 1925), § 228, p. 448; 49 C. J. S., Judgments, § 267, p. 482; cf. Restatement, Judgments (1942), § 11, p. 65. The majority concede the foregoing for their opinion states that the judgment is “of no legal effect for any purpose.” Yet they deny its vacation.
Nor is there any disagreement that it has heretofore been the law of this State that laches and estoppel are no defense to a motion to vacate a judgment invalid on its face. A void judgment may be vacated at any time. Westfield Trust Co. v. Court of Common Pleas, supra; see 49 C. J. S., Judgments, § 288, p. 523; § 333, p. 608. To what extent the practice has been modified by R. R. 4:62-2 with its requirement of a “reasonable time” is the question upon which I disagree with the majority. Can it be said that, except in the most extreme circumstances, a court may now find delay sufficient to breathe life into a void judgment? I think not. The rule as it applies to vacating a void judgment is flexible, — no fixed time being set. See Shammas v. Shammas, 9 N. J. 321, 327 (1952). In determining what constitutes a reasonable time under the cited rule, the nature of the relief sought must be balanced against the equities favoring the party who procured the judgment, or innocent parties who have acquired property rights in reliance upon its validity. The time here was approximately four years, during two of which the defendant Paone was still an infant. No property right of either the plaintiff or third parties is shown to have been acquired on the strength of it. The plaintiff, in fact, has shown no change in position made in reliance upon the judgment, nor any attempt to collect the judgment since its entry on November 6, 1952. The sole change referred to by the majority is the death of a co-defendant who most likely would have been a witness for the defendant, and hence his loss bears no prejudice to the plaintiff on the merits. Parenthetically, it should be noted that this witness died shortly after the accident, so that apparently he would not have been available even in the prior suit. Thus, this is not a situation where the loss of the only witness was caused by delay. Accordingly, even if it be assumed that enforcement of the judgment entered without jurisdiction over the infant defendant is consonant or reconcilable with our principles of jurisprudence, the equities do not so preponderate in plaintiff’s favor as to-preclude relief to the defendant. Equity is ill-served by ruling impregnable a void judgment obtained against an infant, thereby precluding a hearing on the merits.
Nor can it be overlooked that the situation was knowingly created by the plaintiff. While he may not have known defendant’s age when suit was instituted, he later learned of it for he then sought the appointment of a guardian. However, even then he made no effort to effect proper service. Instead, be proceeded to take a default judgment, but, as the majority opinion points out, he failed both to serve upon the infant defendant notice of motion to appoint a guardian as required by Rule 3 :r7-2(e), now R. R. 4:30-2(c), and to serve the guardian with notice of motion for entry of a default judgment. He obtained the judgment without any appearance having been made for the infant by his appointed guardian as required by Rule 3:55-2(6), now R. R. 4:56-2(6). Enforcement of a judgment obtained under such conditions would encourage disregard not only of the court-prescribed service requirements, which the Supreme Court in Driscoll v. Burlington-Bristol Bridge Co., supra, directed be strictly observed, but of the other above-mentioned rules which were adopted for the protection of the interests of infants.
The facts here disclose not only that default judgment was entered against the infant defendant without the-appearance of a guardian, but, more important, that the defendant was never personally served. Accordingly, I express no opinion as to whether the failure to appear would! of itself constitute grounds either to reopen or vacate the-judgment. See R. J. Goerke v. Nicholson, 5 N. J. Super. 412 (App. Div. 1949).
The ruling on a motion to set aside a judgment is generally said to be within the sound discretion of the trial court. Shammas v. Shammas, supra, 9 N. J., at page 328. With this I agree, but here the exercise of the trial court’s discretion was based upon a mistaken belief that the statute of limitation would deprive the plaintiff of his right of action. Were this the case, a finding that the defendant’s motion was not made within a “reasonable time” would perhaps be warranted. But when a judgment is vacated, the complaint and all subsequent pleadings remain in full force and effect; it is as though the judgment had never been entered. 1 Freeman on Judgments, supra, § 302, p. 594. Here, the plaintiff, within the period prescribed by the statute of limitations, filed his complaint commencing this action, R. R. 4:3-1. The action is neither discontinued nor abated by vacation of the judgment; it remains subject to further proceeding. Moreover, the plaintiff is not limited to proceeding with the action initially filed, but may by express statutory provision file “a new action within one year next” after the judgment is vacated, N. J. S. 2A :14-28. Thus, the running of the statute of limitations cannot justify refusal to vacate the judgment.
The majority opinion stresses “the policy.of terminating litigation within a reasonable time,” but I cannot agree that under the circumstances of this case “reasonable time” should be construed so as to terminate litigation involving a judgment void on its face, particularly where, as here, the court never acquired jurisdiction over the defendant. See 31 Am. Jur., Judgments, §§ 576-577, pp. 175-177.
Por the reasons herein expressed I would vacate the default judgment.