George W. Morrison vs. Nathan Underwood

Massachusetts Supreme Judicial Court1849-11

5 Cush. 5259 Mass. 52

Summary · law.co

Holding. The judgment is affirmed. Proper service of a summons at a defendant's last and usual place of abode within the state confers jurisdiction over the defendant and the action, and no mandatory continuance of the action is required under the current statute when the defendant was absent from the state at the time of service.

A defendant who was outside the state when served with a summons challenged the court's jurisdiction and the validity of the judgment against him. The court held that proper service at the defendant's last and usual place of abode in the state gave the court jurisdiction over both the action and the parties, regardless of the defendant's presence or absence from the commonwealth at the time of service. The defendant's claim that he lacked notice was contradicted by evidence presented at trial.

The defendant also argued that the action should have been continued for at least one term before judgment, citing an older statute that had made such continuance mandatory when a defendant was absent from the state. The court determined that the current statute differs materially from the prior law and does not require a mandatory continuance. Moreover, even if the statute had imposed such a requirement, it would be a protection for the defendant's benefit and could be waived by consent. Here, the defendant did not timely assert this objection, and according to the facts of the case, he had returned to the state before trial, rendering the continuance requirement inapplicable.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Jurisdiction over a defendant served while outside the state
Sufficiency of service by leaving summons at defendant's last and usual place of abode
Requirement for continuance of action when defendant is absent from state
Whether defendant's absence from state and lack of notice constitute reversible error

Procedural posture

The plaintiff in error, who was the defendant in the original action, appealed the judgment on multiple grounds of alleged error.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Shaw, C. J.

By the Rev. Sts. c. 90, § 44, no personal action shall be maintained against any person out of the state, at the time of the service of the summons, unless he shall have before been an inhabitant of the state, or unless an effectual attachment of property is made on the original writ. By a clear.implication, an action will lie in either of these excepted cases, and that such was the intention of the legislature is manifest from the report of the revising commissioners, in their comments upon the corresponding section (c. 90, § 39) in their report. By § 45 of the same chapter it is provided, that service shall be made by leaving a summons at the defendant’s last and usual place of abode.

In the present case, a summons was left at the last and usual place of abode of the plaintiff in error in Roxbury. This was sufficient to give the court, to which the writ was returnable, jurisdiction of the action and of the parties. The fact, therefore, assigned for error, to wit, that the original defendant was not an inhabitant of the state, and was out of the commonwealth, at the time of the .service of the writ, is no error, and no cause for reversing the judgment.

2. Another error assigned is, that the defendant had no notice of Ihe suit. This is a pure allegation of matter of fact, which does not and cannot appear, one way or the other, on the face of the record, and, therefore, if material, is open t<? proof by any competent evidence. Upon this point, paroi evidence was undoubtedly competent, and upon the evidence stated, it is clear that the fact assigned for error was disproved.

3. The other error assigned is, that the action was not continued one term at least after the return term. There seems to be no absolute direction that there shall be such a continuance. The Rev. Sts. c. 92, § 3, provide that if a defendant is not an inhabitant of the state, or has no last and usual place of abode within the same, the court, upon suggestion thereof being made, and the facts appearing by the officer’s return, shall order the action to be continued from term to term, until notice shall have been given in such manner as the court may order.

But this and all similar provisions for giving an absent defendant actual notice, wfiere the service is such as to hold the defendant amenable, and to give the court jurisdiction of the case and of the parties, are provisions for the security and benefit of the defendant, and may be waived by him. It, therefore, follows, that after such service giving jurisdiction, a judgment by consent is valid : consensus tollit errorem.

The authority, cited for the position that a judgment without one continuance is erroneous, if the plaintiff in error was out of the commonwealth at the time of the service of the writ, is the case of Blanchard, v. Wild, 1 Mass. 342. That case was upon the old statute of 1797, c. 50, (passed February 1798,) by which it was provided, that if the defendant was out of the state, and should not return before the time of trial, the court should continue the action to the next term, on a suggestion of the fact being made on the record. In the assignment of errors in that case, this fact was stated, in addition to that of being out of the state at the time of the service, and the plea in nullo est erratum was an admission of the fact. That statute made it imperative on the court, to continue the action one term. It was also held to be the • plaintiff’s duty to suggest the fact on the record, and if he failed to do so, and took judgment at the first term, he did it at his peril, and the judgment would be erroneous.

The present statute is manifestly different in its provisions. But were the present statute in the same terms with the former, this judgment would not be erroneous, because it is not averred in the assignment of errors, that the original defendant did not return into the state, in time for the trial, and according to the evidence stated in the report, such avermen I could not have been made with truth. In the other case cited, Arnold v. Tourtellot, 13 Pick. 172, no legal service of the writ had been made, to give the court jurisdiction.

Judgment affirmed.