135 Mass. 191 | Mass. | 1883
Our statutes provide that, after a libel for divorce is filed in court, “ the court, justice, or clerk may order the adverse party to be summoned to appear and answer at the court having "jurisdiction of the cause, by the publication of the libel or of the substance thereof, with the order thereon, in one or more newspapers to be designated in the order, or by delivering to such party an attested copy of the libel and a summons, or in such other manner as may seem most proper and effectual.” Pub. Sts. c. 146, § 9. Section 10 provides that, “ when the adverse party does not appear, and the notice of the pendency of the libel is considered by the court to be defective or insufficient,
The process which issues upon filing a libel, though in form an order of notice, is in legal effect a summons. It is the process by which the libellee is directed to appear in court and answer to a civil action, and has always been treated by the statutes, from the St. of 1785, c. 69, to the latest revision, in 1881, as in the nature of a summons issued by a common law court, and not as in the nature of a citation from an ecclesiastical or civil law court. It was never contemplated by the statutes that it could be served by any disinterested person, unless by a special order of the court. Private persons cannot serve legal process issuing from a court, unless they are authorized to do so by express provision of statute, as, for instance, in serving a subpoena upon witnesses.
It has been decided that a constable had no authority under the St. of 1785 to serve a libel for divorce, and a libel was dismissed because served by a constable. Brown v. Brown, 15 Mass. 389. This case involves the decision that a private person cannot serve a libel, for, if he can, he could not vitiate the service by adding to his name in his return his designation as a constable. To hold that every libellant has the right to select any person to serve the summons or order of notice, would greatly increase the danger of fraud and imposition upon the court, — a danger which is already so great as to require the utmost vigilance to guard against it.
Constables are local officers of the peace elected by cities or towns. Originally, their duty was to keep the peace, and they have no authority to serve process in civil actions, except such as is expressly conferred upon them by statute. In this State, the statutes have conferred upon them authority to serve process in personal actions where the amount in controversy is small, or which are otherwise comparatively unimportant. We should be slow to believe that the Legislature intended to give them authority to serve the original process in a matter so important as a divorce suit, unless such intention is expressed in the clearest manner.
This provision was first enacted in the revision of the statutes in 1860. Gen. Sts. c. 18, § 64. At the same time a provision in precisely the same language was enacted applicable to sheriffs. Gen. Sts. c. 17, § 66. It seems clear to us that the word “ citation ” was not intended to denote an original summons. The context shows this. It is used in connection with “demands” and “notices.” Nosdtur a sodis. The saving clause that the provision shall not exclude the service thereof by other parties, indicates that it was dealing with processes which might be served by private persons. The reasons given to the Legislature by the commissioners show that it was not the purpose to enlarge the number of processes which a constable or sheriff might serve, but to “ furnish a uniform rule for the service of many notices and demands,” and to “ make an officer’s return of service of citations, demands, and notices, prima fade evidence, and thus often render it unnecessary to require him to attend court as a witness to the facts by him certified.”
The word “ citation,” which in the civil law and in ecclesiastical courts means the original summons by which a defendant
The libellant contends that, as the provisions of the Pub. Sts. c. 27, § 117, are identical, word for word, with those of the Pub. Sts. c. 25, § 17, constables have the same authority to serve the order of notice in a divorce suit that sheriffs have. But the authority of sheriffs to serve libels is not derived from this provision of the statute. This is shown by the fact, that, before this statute was passed, and ever since the establishment of our government, they have been recognized and accepted, by the uniform practice of the court, as the proper officers to serve the process issuing upon libels for divorce. As we have before shown, this statute was not intended to confer upon them any new powers as to serving such process. Whether they derive their authority from the statute requiring them to serve all writs and precepts issued to them, or from the common law, or from the uniform action and practice of the court in its discretion, in accepting them as the proper officers to serve the process, is not material, and need not be discussed in this case.
For these reasons, we are of opinion that the libellant had not a right to have her libel served by a constable, and to require