| Mass. | Mar 15, 1870
We assume the facts to be as the testimony of the petitioner tended to show them. By mistake of the officer serving the process in the original suit, the copy was left at a place where the defendant had ceased to reside and he had in
The case has been so elaborately discussed in reference to collateral provisions of the General Statutes, as well as to the earlier statutes and the successive modifications thereof, that some review of the law upon this subject seems to be required. The respondent contends that the terms “ in the absence of,” as applied to a party in a suit, and “ absent defendant,” are coextensive, and have acquired a special or technical meaning in the General Statutes, signifying absence from the Commonwealth ; that otherwise they can have no meaning, in the section relating to reviews, which would not include in the exception all judgments rendered on default.
By St. 1791, c. 17, § 2, it was provided that reviews might be granted in all cases upon application made “ within three years after the rendition of the judgment complained of.” St. 1820, c. 53, extended the time to three years after the party first had notice of the judgment, in case of a suit commenced when he was absent from the Commonwealth and had no notice thereof before the rendition of the judgment. By the Revised Statutes the time in both cases was reduced to one year. In c. 99, § 17, a writ of review, at any time within one year after judgment, is given as of right, and without any petition therefor,” in case of a judgment “ upon the default of a defendant who is out of the state.” Although reference is made to the ninety-second chapter for the manner in which judgment is rendered, the language of this section does not permit its application to any of the cases provided for in c. 92, except those where the defendant is “out of the state.” This section contains the further
The defendant contends that this section limits the right to file a petition for review, within one year after notice of the judgment, to precisely the same cases as are already provided for by § 18. If this were the intention of the statute, we think it would have been indicated either by some allusion to the previous section, or by the use of similar phraseology. In §§ 17 and 18, the application to defendants “ out of the state ” is made certain by distinct and appropriate language. The use of phraseology in § 20, of which the natural and obvious meaning is less restricted, indicates a corresponding intent in the provision. This inference is strengthened by reference to chapter ninety-two, “ Of proceedings when the defendant does not appear and answer to the suit.” It provides, first, for judgment upon default. Section 3 provides for continuance and further notice to the defendant, if he “ is not an inhabitant or resident within the state, or if his residence is not known to the plaintiff nor to the officer serving the writ.” Section 4 provides that, " When judgment is so rendered upon the default of an absent defendant,” he shall be entitled to a review within one year, as f right. Section 5 allows a review in such case, when not prosecuted as of right, upon petition made within one year after notice of the judgment. It would seem that the term “ absent defendant” in § 4 was intended to be applied to all those for
Some doubt of this construction of the Revised Statutes would arise from the fact that by c. 99, § 17, a review as of right is explicitly limited to the case of a defendant who is out of the state, and the writ is forbidden to issue in any other case, unless allowed upon' petition. But this difficulty is removed in the General Statutes, c. 146, either by alteration, or by legislative construction; and it is immaterial by which mode it is done. A writ of review, within one year after judgment, is given by § 20, “ when judgment is rendered, as provided in chapter one hundred and twenty-six, upon the default of a defendant upon whom service has not been made by reason of his being out of the state, or his residence being unknown.” It is clear that, under this section, the review as of right cannot be limited, as in Rev. Sts. c. 99, § 17, to defendants “ out of the state.” It is also manifest, especially upon reference to c. 126, § 6, that the right to have a review by writ without petition was intended to be based upon the want of service of the writ, either personal upon the defendant, or at his actual place of residence.
A review upon petition, when not prosecuted as of right, may be granted by the supreme court, “ provided, that if the judgment complained of was rendered in the absence of the petitioner, and without his knowledge,” the petition shall be filed within one year after he first had notice of the judgment, otherwise within one year after judgment was rendered. Gen. Sts. c. 146, § 21. Construing this section with reference to its connection, as well as by the obvious sense of the words used, we find no reason to interpret “ absence ” as meaning “ out of the state ” only . We think it was intended to apply to all cases of
From this review of the statutes, we are satisfied that it was the intention of the legislature to give to every party the right to file his petition for a review within one year after notice of a judgment against him, whenever by any means or for any cause there was in fact no service of the process upon him and no notice of the pendency of the suit, so that he was deprived of an opportunity to appear and defend his rights in the original action.
At common law no judgment could be rendered against a party without his appearance in court to answer to the suit. If he failed to appear upon the first summons, further process was necessary to compel his attendance. 3 Bl. Com. 279. Picquet v. Swan, 5 Mason C.C., 35" court="None" date_filed="1828-05-15" href="https://app.midpage.ai/document/picquet-v-swan-8635820?utm_source=webapp" opinion_id="8635820">5 Mason, 35. It is only by statute that judgment can be rendered upon default, against a party who has been duly served with the process of the court. It is the manifest purpose of the statutes upon this subject that a defendant shall, in some form, have actual personal notice of the pendency of proceedings against him before any judgment is rendered which shall absolutely and forever preclude him from an opportunity to avail himself of his rights in defence. Although the statutes allow service of process to be made by leaving “ the original or a copy, as the case may be,” at the “ last and usual place of abode” of the defendant; yet if he is absent from the state and no personal service is made on him, or if the service is defective or insufficient, by reason of mistake as to the place where the summons ought to have been left, the court, upon suggestion thereof by the plaintiff, is required to order a continuance and further notice to the defendant. And in any case in which the defendant does not appear, the court may, in their discretion order the action to be continued and further notice given to him “in such manner as the court may direct.” Gen. Sts. c. 126, § 6
The judgment in this case appearing to have been rendered in his absence and without his knowledge, the petitioner was entitled to file his petition at any time within one year after he first had notice of it. The case must therefore stand for hearing, to determine whether the facts are as the petitioner’s testi many tended to show them to be. Exceptions sustained.