Fitzgerald v. Salentine

51 Mass. 436 | Mass. | 1845

Hubbard, J.

If this case turned merely upon the question of a misnomer of the defendant in the original action, we should think he could not successfully defend against this suit; because a mere misnomer must be pleaded in abatement, if the party would take advantage of it, as it does not necessarily deny the plaintiff’s cause of action. But it is essential to the plaintiff’s recovery, that it should be proved, not only that the real person was sued, but that he was duly served with process, though under a mistaken name. It is provided in the Rev. Sts. c. 90, <§> 54, that “ when the name of any defendant is not known to the plaintiff, the writ may be issued against him by a fictitious name, and, if duly served, it shall not be abated for that cause, but may be amended on such terms as the court shall think reasonable.” '

In examining the present case, upon the facts presented, we are of opinion that there was not a due service upon the defendant in the original action. The return of the writ, indeed, states that a summons for Leonard was left at his last and usual place of abode in Dorchester; but the facts, as agreed by the parties, are, that Salentine lived at a boarding house, with several others, and that the summons was left at that house. ' Where a party is sued by a wrong name, and the summons is left at a boarding house, without other service, we cannot hold it to be such a service as is contemplated by the law. The mere fact that the summons is left under the same roof where a person lives, does not make it a service at his last and usual place of abode. There may be different families residing there, and the summons may have been left in the apartment of the family not sued. There may be different apartments for different boarders to assemble in, and the summons may be left where the party sued never comes. To make such a service valid, it must be left in the part of the house which the defendant inhabits and frequents; or it is not duly served upon him, as being left at his last and usual place of abode. The statute intends, in such a case, a personal service, or what is equivalent thereto. Great mjustice may be done to parties, when sr td by wrong names, if a different construction should be given to the statute, and judgments be recovered against them without the slightest notice.

Judgment was rendered, in this case, against the plaintiff in the justice’s court, and again in the court of common pleas, and we see no sufficient reason for setting it aside. If. the plaintiff himself had not had strong doubts of the sufficiency of his judgment, he would have levied his execution upon the defendant; and we think those doubts were well founded. It is, also, merely a question of costs, as the judgment in this case cannot be pleaded in bar of a suit brought upon the original cause of action.

Judgment for the defendant