140 Mass. 488 | Mass. | 1886
When this case was last before us, it was not in controversy that the judgment obtained against the defendant Riley by Slocum, for negligence in suffering an escape of one Maynard, who had been arrested at the suit of Slocum, was a valid judgment. The inquiry was whether, before bringing an action upon the bond of Riley as constable, an execution against him having been returned unsatisfied, a demand should have been made upon him, and whether, if so, there were circumstances which would excuse such a demand. Fall River v. Riley, 138 Mass. 336. At the subsequent trial, the defendants, who are the sureties on the bond, having been allowed to file an additional answer, sought to impeach the judgment against Riley by proof that, by reason of a want of legal service of the writ,
It is a different inquiry whether sureties may attack collaterally a judgment rendered against their principal by plea, and upon proof, that the court rendering it had no jurisdiction of the case. The party to such a judgment certainly can avoid it only by review, or by a writ of error. Hendrick v. Whittemore, 105 Mass. 23. The surety on a bond, who may, by his contract, be responsible for the amount of such a judgment, is not a party to the original suit, nor privy thereto, and cannot, by the rules of law, review or reverse it. He may therefore impeach it in a suit against himself, and, without reversing it, show that it was invalid for want of jurisdiction over the defendant. Downs v. Fuller, 2 Met. 135. Laflin v. Field, 6 Met. 287. Vose v. Morton, 4 Cush. 27, 31. Leonard v. Bryant, 11 Met. 370, 373. Stimpson v. Malden, 109 Mass. 313.
The officer’s return does not, in the case at bar, show a valid service on Riley such as would give jurisdiction to the court.
The plaintiff further seeks to show the jurisdiction of the court by proof of the appearance of Riley according to a docket entry of the clerk; but the extended record of the district court fails to show such an appearance, or that of any attorney on his behalf, and asserts that he did not appear. This could not be controlled by any evidence, from the clerk, of the docket entries. McGrath v. Seagrave, 2 Allen, 443. Noyes v. Newmarch, 1 Allen, 51.
Exceptions overruled.
The return stated that the officer, “ being unable to find the defendant at his last and usual place of abode,” summoned him to appear and answer by leaving with one McGrath, “ agent of said defendant, a summons of this writ, and he accepted the same as said agent.”