Bruce v. Cloutman

45 N.H. 37 | N.H. | 1863

Bartlett, J.

Under the pleadings the plaintiff cannot recover, if the judgment, on which he relies, is upon its face void as against this defendant; but if not thus void, it will, though erroneous, entitle the plaintiff to recover, as it has not been reversed or set aside. The record shows no actual notice in the original suit to the principal defendant or Clout-man ; and there was no service upon, or appearance by, the former, who was not an inhabitant of this State, nor was his property attached unless by the service upon Cloutman, who was summoned as his trustee, and consequently the judgment would be void if there was no attachment of the property of Stevens in the hands of this defendant. Eaton v. Badger, 33 N. H. 236; Carleton v. Ins. Co., 35 N. H. 167; and, besides, as against this defendant the judgment, under such circumstances and in such a proceeding, would be void, unless he were duly and legally notified, for it was rendered as upon default. Harris v. Hardeman, 14 How. 337; Winship v. Connor, 42 N. H. 346; State v. Richmond, 26 N. H. 241; Judkins v. Ins. Co., 37 N. H. 480, 481; Morse v. Presby, 25 N. H., 305, 309; Smith v. Knowlton, 11 N. H. 191. Such a judgment, not being upheld by any statute, would remain, as at common law, a mere nullity as against this defendant, to whom the statutory notice was not given. Rangely v. Webster, 11 N. H. 305; Whittier v. Wendell, 7 N. H. 257; Gay v. Smith, 38 N. H. 174; Thurber v. Blackbourne, 1 N. H. 242; Horn v. Thompson, 31 N. H. 563; Woodruff v. Taylor, 20 Vt. 76. In Gay v. Smith the record showed a judgment valid on its face, for the service was apparently sufficient. In Nichols v. Smith, 26 N. H. 300, there had been no appearance by the defendant in the original action, and the remarks of the court have reference to that fact. Carleton v. Ins. Co., 35 N. H. 166, does not conflict with these views, for where the proceedings have been properly commenced and jurisdiction obtained by the attachment of property of the debtor in the hands of a trustee, King v. Holmes, 27 N. H. 268: Kendrick v. Kimball, 33 N. H. 176, a defect in the notice, that should subsequently be given to the principal defendant, is an irregularity that will not render the judgment a nullity here, although the defect may be sufficient cause for the reversal of the judgment on error. Gilman v. Thompson, 11 Vt. 641; Gorrill v. Whittier, 3 N. H. 269; Gay v. Smith, 38 N. H. 175; Paine v. Mooreland, 15 Ohio, 435; Bannister v. Higginson, 15 Me. 78; Hawes v. Hathaway, 14 Mass. 233; see Blanchard v. Goss, 2 N. H. 494; and Granger v. Clark, 22 Me. 130.

As, then, in the original suit, service of the process upon this defendant, according- to the statute was essential to give the court jurisdiction over him, as well as to create an attachment of the property of Stevens in his hands, this fact should appear upon the record, the judgment having been rendered as upon default, for the plaintiff would otherwise fail to maintain the issue by the record of a valid judgment. Carleton v. Ins. Co., 35 N. H. 167; Eaton v. Badger, 33 N. H. 238; State v. Richmond, 26 N. H. 241.

The sufficiency of the record of the service upon Cloutman depends on the sufficiency of the officer’s return, that he left at "his dwelling-house” in, &c., a true and attested copy, &c. The statutes then in force required such a copy to be left at the " last and usual place of abode” of the party. Laws 1830, p. 499, sec. 1, p. 91, sec. 11. A sheriff’s return should be certain, yet the highest degree of certainty is not required. Sewall’s Sh’ff. 385.* In its common acceptation a man’s dwelling house is the house in which he resides — the house of his present abode. Webster’s Dict., "Dwelling House;" Crabb’s Syn. 263; see 4 C. & H’s Phil. Ev. (3d Ed.) 192; and the term has long been thus used in our statutes relative to the service of process. Laws 1815, p. 101, sec. 8; Laws 1830, p. 91, sec. 11, p. 97, sec. 25; R. S. p. 368, sec. 3. So, at common law, a man’s dwelling house to be the subject of burglary, must be inhabited by him either personally, or by some of his family; and although some nice distinctions grow up as to what should be a sufficient occupancy by a particular person to answer the description in an indictment, by which an actual personal occupation by the one described as owner was not in all cases held necessary, yet this was upon the ground that the actual occupants stood in such relation to the owner that their occupancy was deemed his. 1 Russ. Cr. 803,* et. seq.; 4 Blk. 224*; Roscoe Cr. Ev. 351, et. seq.; 3 Gr. Ev. sec. 79. Under the statute cited, where service was not made upon the trustee personally, it was necessary, if he had a present place of abode in the jurisdiction, to leave the copy there. Ames v. Winsor, 19 Pick. 248; see Gilman v. Cutts, 27 N. H, 359; Ward v. Cole, 32 N. H. 452, and Foster v. Hadduck, 6 N. H. 218. Cloutman’s dwelling house, then, being his place of present abode must have been his last and usual place of abode within the meaning of the statute, and, though the practice of departing from the plain words of the statute in such cases is not to be encouraged, we think that the return is sufficient.

As Cloutman by his default admitted that he had in his possession funds of the principal defendant, the attachment of these funds in his hands was a proper commencement of proceedings, and, at least as far as these funds were concerned, the judgment would not be rendered void here by any irregularity in giving notice to Stevens, if such existed, and were sufficient cause for reversing the judgment on error. These views render it unnecessary for us to examine the alleged imperfection of the record in regard to notice to Stevens. There must be,

Judgment for the plaintiff.