Brooks v. Norris

| Mass. | Mar 25, 1878

Colt, J.

The validity of the demandant’s levy is disputed by the tenant, on the ground that he was not legally notified and allowed, as judgment debtor, to appoint an appraiser. The judgment was recovered against him in Suffolk County, and he was described as of Chelsea, in that county. The land levied on was in Essex County, and the officer returned that, in making the levy, he and the creditor each appointed one of the appraisers, and the other was appointed by him for the debtor, upon whom notice to appoint could not be served, he not being an inhabitant of or a resident in his, the officer’s, precinct, and having no agent or attorney duly accredited to him as such.

The officer is required to set forth substantially, among other things, the fact that the appraisers were appointed by him, and the debtor, and the creditor; “or that the debtor was absent from or not resident in this state, and had no agent or attorney known to the officer, or neglected to appoint an appraiser, and the officer appointed one for him, as the case may be.” Gen. Sts. c. 103, §§ 3, 25. The statement in this return, that the debtor was not an inhabitant of the officer’s precinct, or resident therein, and could not be served with notice, cannot be regarded as equivalent to the statement that the debtor was absent from or not a resident in the state; or that he neglected to appoint an appraiser. Sheriffs and their deputies have no power, except as they may be authorized by special provisions, to serve and execute process beyond the limits of their respective counties. Gen, Sts. c. 17, §§ 9, 10, 65; c. 18, § 69; c. 170, § 11. The word “ precinct,” as used in an officer’s return, and in the Gen. Sts. c. 103, § 24, requiring notice of the taking to be given to the debtor by the officer, if the debtor is found within his precinct, means the territory within which the officer may legally discharge the dudes of his office, and cannot fairly be interpreted as meaning the whole state.

Before the St. of 1852, e. 256, the officer, in making a levy, could only act for the debtor when the latter neglected to appoint for himself; and it was held not to be sufficient for the return to state that the debtor was not a resident of, or was out of the state; for it was said he might nevertheless have communicated his choice of an appraiser by letter to the officer, and in that case could not be said to have neglected to do it. Leonard v. Bryant, 2 Cush. 32. Shields v. Hastings, 10 Cush. 247. Following these decisions, and doubtless in consequence of them, the St. of 1852 was passed, giving the officer power to appoint, when the debtor was absent from the state, or not a resident therein, and had no agent or attorney known to the officer; or when he neglected to appoint. If either of these two states of facts existed, and was stated in the return, it is sufficient.' Randall v. Wyman, 16 Gray, 334. But one or the other must be stated. The difficulty with this return is, that it states neither alternative.

The statement that the debtor, not being in the officer’s precinct, and having no agent or attorney, could not be served with notice to appoint an appraiser, is entirely consistent with the fact that he was then a resident of an adjoining county, and not out of the state. In such case, it is now as much the duty of the officer to state that the debtor neglected to appoint, as it was before the St. of 1852. Exceptions overruled,.