Jones v. Smith

3 N.H. 108 | Superior Court of New Hampshire | 1824

Richahosox, J.

delivered the opinion of the court.

The question to be decided in this case is, whether the original writ was so served as to warrant the rendition of a judgment against the plaintiff in error ? The decision of this question depends upon the construction to be given to the statute of February 9, 1791, entitled, “ an act regulating “ process and trials in civil causes.” The eighth section of that statute provides, that “ when the goods or estate of any “ person shall be attached, &c. a summons, &c. shall be delivered to the party, whose goods or estate are attached, “ or left at his or her dwelling house, or last and usual place “of abode,” &c.

“ And in case the defendant, at the time of the service of “ any writ, be not an inhabitant or resident in this state, and “ the writ be not served on him in person, but the defend- “ ant’s goods, or estate, &c., are attached, then an attested “ copy of the writ, and a particular description of the lands, “ or goods attached thereby, shall be given to the defendant, “ or left at his last and usual place of abode, &c,, or such “ copy may be left with the defendant’s agent, lawfully au- “ thorized to appear for him, or with the defendant’s tenant “ living on or near the land attached,”

And the 17th section of the act provides, “ that when a “ suit .shall be brought against a person, who is not .an inhab- “ itant or resident in this state, and no personal service “ be made on the defendant, or when the person, against .i! whom any suit is brought, shall be absent from this state, “ at the time of commencing such suit, and shall not have “ returned at the time appointed for trial, the justices of the “ court, before whom such suit is, shall continue the action “ to the next term ; and if the defendant doth not appear at : “ the next term, &c., the court shall further continue the • ‘.‘■action to the next.term, unless the plaintiff shall.produce u Evidence, &c., that the defendant hath had notice of “ the suit, &c. Aud in such cases, where judgment is eti- “ tered up by default after two continuances, as aforesaid, “ and notice proved as aforesaid, the proof of which notice u shall always be in writing, and filed in the cause, execu- “ tion, &c., shall not issue until the plaintiff, &c., shall have given bond in double the value of the estate, or sum re- “ covered by such judgment, to respond the judgment, that may be rendered on actions of review brought to reverse “ such original judgment.?’

The language of these provisions in the statute is extreme*' ly plain, and seems hardly to admit a doubt as to their true meaning.

When the goods or estate of a person, who has his domicil, and actual residence, in the state, are attached, a summons must be given to him, or left at his domicil; and this will be a sufficient service of the writ. -

When the goods or estate of a person, not an inhabitant or resident in this state, are attached, an attested copy of the writ, and a particular description of the.land or goods attached are to be given to the defendant, or left at his usual place of abode, and this certified by the officer, who made the attachment, or by some proper officer in the state, where the defendant lives, or by some other person, and affidavit thereof made, will be a sufficient service of the writ. And if the defendant have an agent authorized to appear for him, or a tenant living on or near the land attached, the copy may be left with such agent or tenant.

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 in the statute*

But it is very apparent, that such a service might, in some cases, fail to bring home to the defendant, notice of the suit; it is, therefore, provided in the 17th section, that when the suit is against a person, not an inhabitant of this state, and no personal service is made upon the defendant; or when, the defendant is absent from the state, when the suit is com-meneed, and does not return before the time appointed for trial, the court shall continue the cause ; and if the defendant do not appear at the next term, the cause is to be further continued, unless the plaintiff produces evidence to satisfy the court, that the defendant has had notice. If the defendant fail to appear at the third term, he may be defaulted ; but no execution is, in such case, to issue, unless a bond is given, as required by the statute. If, however, the plaintiff will consent to have the cause continued six terms, he may thus have judgment by default, and execution may issue without a bond.

Such seems to us to be the meaning of this statute. But, it has been urged in behalf of the defendant in error, that, if this be the true construction of the statute, no judgment can he rendered here against a debtor, who absconds, leaving no agent, or tenant, and goes to parts unknown to his creditors. "We are aware of this ; yet, still we Cannot believe, that it could have been the intention of the legislature, that a judgment rendered against a party, without notice, and without any attempt to give notice, should bind him conclusively, unless the action should he reviewed within one year after the rendition of such judgment. We are of opinion, that the object of the 17th section of the statute was not to provide a mode of taking judgment without a service of the Writ upon the defendant ; but to delay the rendition of judgment, in cases where there is no personal service of the writ upon him, until notice of the suit, through the other modes of serving the writ, which are provided by the statute, may probably reach him. This construction is so just and reasonable, that xve cannot entertain a doubt, that it is the true construction.

Upon looking into the record now before us, we perceive, that the land of the plaintiff in error was attached by virtue of an original writ ; but it does not appear, that there was any other service xvhatever of thatwrit, nor that the plaintiff in error had any notice of the suit. Whether the plaintiff in error then was within, or out of the state, at the time the original writ issued, it was not served in the manner the statute requires ; and the judgment which has been rendered in the suit is erroneous, and must be reversed.

Judgment reversed.