| Mass. | May 7, 1883
It is not necessary to decide whether the plaintiff’s amendment was properly allowed, because we are of opinion that, if the petition is to be treated as a petition for a review, it was filed too late, and therefore cannot be maintained. The judgment sought to be reviewed was rendered on June 24, 1880. The plaintiff’s petition was filed on December 7, 1881. At the hearing upon the petition, it appeared that personal service of the writ in the action in which the judgment was recovered was made upon the plaintiff in review.
The statute provides that, “if the judgment complained of was rendered in the absence of the petitioner, and without his knowledge, the petition for review shall be filed within one year after he first had notice of the judgment, otherwise within one year after the judgment was rendered.” Gen. Sts. c. 146, § 21. Pub. Sts. c. 187, § 22.
This statute was carefully considered in James v. Townsend, 104 Mass. 367" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/james-v-townsend-6416070?utm_source=webapp" opinion_id="6416070">104 Mass. 367. The precise point involved in the two cases is not identical, but the construction of the statute which the court adopted in that case is decisive of the case at bar. After a review of the statutes, the court says: “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.” But if a defendant has notice of a suit by due service of process upon him, he is constructively, and by legal intendment, present in court; and a judgment rendered upon his default is not rendered in his absence within the meaning of the statute.
Personal service was made upon him in the original action ; he had notice of it, and opportunity to appear and defend it; and his right to file a petition for a review was limited to one year' after the judgment was rendered. Exceptions sustained.