Galusha v. Cobleigh

13 N.H. 79 | Superior Court of New Hampshire | 1842

Upham, J.

This case comes before us on special demurrer to the plaintiff’s replication.

The first exception taken is, that it is double, as it alleges several distinct causes of delay in not sooner prosecuting the writ of error. These allegations are that the plaintiff, at the time of the rendition of the original judgment, and until within three years next before the suing out the writ of error, was not a resident of the state of New-Hampshire, but that he was during that time a resident of the state of New-York, and had no notice of the original judgment. These are several distinct facts ; they constitute, however, but one ground of reply to the plea of the statute of limitations. Unless all these allegations had been set forth in the replication, it would have been defective, as furnishing no answer to the plea. The replication is, therefore, not double.

A farther exception taken to the replication is, that it alleges merely that the plaintiff in error had no notice of the judgment, without denying that he had notice of the original writ. But a notice of the writ constitutes notice of the judgment ; and if so, denying of notice of the judgment may well be regarded as a sufficient denial of notice of service of the writ on which the judgment is founded, as the one necessarily includes the other.

It is farther contended, in relation to this point in the replication, that the return of service by the officer, “ that he left a summons at the last and usual place of abode of the defendant,” is conclusive evidence of a legal notice of service. Such a return is understood to show a summons left at the last and usual place of abode of the party within the state, but is never held conclusive on the question of residence, or of the presence of the party within the state. It would impose a very hazardous duty on the sheriff to compel him to settle the difficult question of the residence of the party, and render him liable for a false return in all cases of mistake. The plaintiff is not estopped by the officer’s return from showing his true residence at the time of service.

The rule as to the effect of an officer’s return is well laid down by the chief justice, in the case of Brown vs. Davis, 9 N. H. Rep. 76. It is there held, that “the return of the sheriff of matters material to be returned, is so far conclusive evidence on the parties to the suit, and those claiming under them as privies, that it cannot be contradicted for the purpose of invalidating the officer’s proceedings, or defeating any right acquired under them.”

No attempt is made in this case to contradict or invalidate the officer’s return. The facts set forth by the officer may all be conceded, and yet, under the circumstances, constitute no valid foundation for a judgment. The officer returns that he made a nominal attachment of property, and that he left a summons at the last and usual place of abode of the defendant. This may all be consistent with the fact that the defendant, at the time of the commencement of the suit, and from that time until the rendition of the judgment, was without the state, and had no notice of the suit. If such was the case, the plaintiff should have governed himself by the requirements of the statute, before proceeding to take execution.

The statute provides, that “ when a suit shall be brought against a person who is not an inhabitant or resident in this state, and no personal service be made on the defendant; or when the person against whom any suit is brought shall be absent from the state at the time of commencing such suit, and shall not have returned at the time appointed for the trial, the court shall continue the action to the next term ; and if at the next term there is no appearance for the defendant, it shall be farther continued, unless the plaintiff shall produce evidence sufficient to satisfy the court, that the defendant has had notice of the suit a sufficient time before such term to have appeared at court ; and where judgment is rendered by default -after two continuances, the plaintiff is required to give bond to respond the amount recovered on review of the suit, if any shall be had,” &c. 1 Laws N. H. 92.

The statute of Massachusetts contains the same provision as our laws and it is there held, that a writ of error lies on a judgment of court rendered against the defendant by default, although the officer made return of service by leaving a summons at the last and usual place of abode of the defendant. 1 Mass. 341, Blanchard vs. Wild; 2 Mass. 35, Skipwith vs. Hill.

In Jones vs. Smith, 3 N. H. Rep. 108, Mr. Chief Justice Richardson remarks, “ when the goods or estate of a-person who has his domicil in this state, but who may, at the time, be absent from the state, are attached, a summons must be left at his domicil. In all cases where an attachment is made there must be a service in pursuance of these provisions of the statute. But it is very apparent that such a service might, in some cases, fail to bring homo to the defendant notice of the suit; and in such cases the action must be continued to the third term of the court, before the rendition of judgment.”

The principal objection, however, which has been urged in this case has been, that the plaintiff is barred by the statute of limitations from maintaining his writ of error, because it was not commenced within three years of the rendition of the original judgment.

To avoid this objection, he must show himself within the proviso of the statute authorizing persons “ who are infants, non compos mentis, femes covert, or beyond sea,” to commence an action within a given period after the disability has been removed.

The plaintiff does not allege in terms that he was “ beyond sea,” but that he was without the state — a resident in New-York, and had no notice of the judgment rendered ; and the question arises, whether these facts show him to have been “beyond sea,” within the meaning of the statute,

Our statutes of limitation are for the most part copies of the English statutes, with very slight alterations. The saving clause in our statute relating to writs of error is precisely the same as the saving clause in the statute of limitations of 21 James I.

Prior to the union of Scotland with England, the saving clause in the English statute was different from that of the statute of James I. The exception in the statute of limitations included at that time all persons resident “ without the realm of England,” so that their rights were protected until their return. Under this statute, persons in Scotland and Ireland were adjudged to be without the realm of England. After the union of the two kingdoms, the term “ beyond seas” was introduced into the statute, instead of “ without the realm of England.”

In the case, King vs. Walker, Black. Rep. 286, a construction was given to the act, by which Scotland was .held not to be beyond seas. The court remark, “ the statute ought to be construed. There is now no such kingdom as England. The plaintiff, therefore, while in Scotland was not out of the realm; besides, that is not now the phraseology of the statute. The legislature, by altering it to “ beyond sea,” at such a critical juncture, seem to have -pointed to this very case of living in Scotland. It is a question very doubtful whether the statute of limitations does not now extend to residents in Scotland. As at present advised we should rather think it does, and judgment was rendered accordingly.”

A construction was thus early given to the phrase, “ beyond sea.” As applied to the local position of=England, its meaning could hardly be misunderstood. The sea being the natural boundary of the united kingdoms, it was a mere designation of territorial limits. The difficulty has been in adopting that phraseology in this country, where our local situation is entirely different. If we understand the term, however, to be a mere designation of territorial boundary, it has a plain, intelligible meaning, applicable to every country. And the phrase, “beyond sea,” in this country, as applicable to our states, has uniformly been regarded, except when otherwise expressly defined in the statute, as a mere designation of the territorial limits of the jurisdiction of the states. 11 Wheat. 361, Shelby vs. Guy; 3 Wheat. 541, Murray's Lessee vs. Baker; 1 Cond. 483, Ford vs. Robertdean; 14 Pet. 141, Bank of Alexandria vs. Dyer.

We think this is its trae construction. The only trouble in the case has been to determine whether, by our legislation in New-Hampshire, we have given a different meaning to the term. The provision as to the limitation of writs of error has uniformly been embraced within the general statute relative to the limitation of personal actions, in a section by itself; and the provision of the law in relation to such suits has remained the same in the several editions of the laws of 1805, 1815, and 1830, under one or two revisions of the act, while the saving clause, as to real actions and actions of trespass quare clausum, and most personal actions, has constantly varied in its phraseology. In real actions the saving clause was originally, by statute of June 16, 1791, in favor of “infants, persons non compos mentis, beyond seas, or without the limits of the United States.” Laws N. H. (Ed. of 1815,) 164. In the act of June 19, 1805, relative to real actions, the term, “ beyond seas,” is omitted. In the statute of 1791, relative to personal actions, the saving clause is in favor “ of any infant, feme covert, person imprisoned, or beyond seas, without any of the United States, or non compos mentiswhile in the act of 1825 the punctuation is changed, so that the exception reads, “ beyond seas, without any of the United States.”

The provision as to the limitation of writs of error has been, that no judgment in any real or personal action shall be reversed or avoided for any error or defect therein, unless the writ of error, or suit for the reversing such judgment, be commenced, or brought and prosecuted with effect, within three years after such judgment entered of record, saving unto any infant, feme covert, person non compos mentis, person in prison, or beyond sea, the right of bringing any writ of error or suit for the reversing of any judgment at any time within three years after such judgment rendered, or within five years after such impediment shall be removed. Laws N. H. 78, (Ed. of 1830.)

The provision as to writs of error has been, through the several revisions of the statute, distinct and different from the provision as to all other actions. The phrase, “ beyond sea” merely, is uniformly used in relation to such suits, without any qualification, through a series of acts. Whether this difference was accidental or designed-; we think we must affix to it the ordinary meaning which has been so long known and established in law, and that it cannot be explained or avoided by a difference of phraseology as to other actions. If it be desirable that there be an uniform rule in relation to different actions in this respect, it is incumbent on the legislature to establish such rule. As the statute now stands, it is far from being, clear that the legislature had any such intention. We, therefore, hold that the replication is good, and that the action may be maintained.