86 Mass. 357 | Mass. | 1862
It is unnecessary to decide whether Riley Watkins, who had been originally summoned as a trustee of the principal defendants in this action, and who had long previously filed an answer denying having any goods, effects or credits in his hands, and whom the plaintiff was no longer seeking to charge as trustee, could, at this time, in his own right, raise any question whether the proper' service had been made upon the principal defendants. But, independently of any such right on the part of Watkins, it seems to us that it is the duty of the
A service thus made by giving a copy of the writ to the plaintiff was to no essential purpose a service on the corporation as defendants. The action might as well have proceeded without any service of the writ as on one of that character. The plaintiff had notice of the action, because he instituted it. The notice, to be effective, must be a notice to an adverse party. If there was no other agent or officer of the corporation except the plaintiff, it would seem to be the proper course to serve the process on some member of the corporation, and that member some other person than the plaintiff. In the present position of the case as to the service of the writ, the plaintiff is not entitled to have the defendants defaulted; and the fact of such want of service being brought to the notice of the court, and appearing from the return upon the writ, the court should refuse to default the defendants. Craig v. Gisborne, 13 Gray, 270. The default of the defendant which was entered is to be stricken off, and the case will stand for such further disposition as may be proper.