170 Mass. 569 | Mass. | 1898
A motion to dismiss was allowed in the Superior Court, and judgment was ordered for the defendant. The plaintiff having appealed to this court, the first question for us to consider is whether we have power to revise the action of the Superior Court. By Pub. Sts. c. 152, § 10, and c. 153, § 8, the decision of that court upon a motion to dismiss for defect of form of process is final, and no appeal lies. The ground of the dismissal of the action was as follows. The action was originally brought in the Municipal Court of the city of Boston. Both the plaintiff and tire defendant were residents of New York, but the residence of the plaintiff was not stated in the writ. By Pub.
This case does not fall within the principle of those cases where it has been held that jurisdiction over a non-resident, upon whom no legal service has been made, cannot be acquired by overruling a motion to dismiss. Kimball v. Sweet, 168 Mass. 105. Allin v. Connecticut River Lumber Co. 150 Mass. 560.
The allowance of the amendment, by inserting an averment of the plaintiff’s residence, does not have the effect to give us jurisdiction. The defendant contends that he was not legally brought before the court, and that after the allowance of the amendment the plaintiff should have caused a new service to be made. However that may be, the decision upon the motion to dismiss was final.
Judgment affirmed.