297 Mass. 302 | Mass. | 1937
This is an action of contract by a resident of Ohio against a resident of New York. Two corporations doing business in this Commonwealth were summoned as trustees. One of the alleged trustees answered "no funds” and the other set forth facts upon which it was subsequently discharged by the court. No service of the trustee writ was made upon the defendant. He appeared specially, however, for the purpose of protecting any interest he might have in any credits in the hands of the trustee which has now been discharged. Cheshire National Bank v. Jaynes, 224 Mass. 14. On motion of the plaintiff the court entered an order directing the plaintiff to give notice to the defendant of the pendency of the action by serving him with a true and attested copy of the order "that he may . . . show cause why • judgment in the above-entitled action should not be rendered against him.” A deputy sheriff served this order upon the defendant by copy in hand within this Commonwealth. The defendant, again appearing specially, moved to quash the order of notice and later, after the discharge of the trustee, moved that the action be dismissed for want of jurisdiction. Both motions were denied. The primary and decisive question is whether, by the means adopted, the nonresident defendant has been made a party to the action, not merely for the purpose of protecting any credits which might have been held by the trustee attachments, but generally, so that a binding personal judgment can be rendered against him.
Apparently the notice was intended to be ordered and given in accordance with G. L. (Ter. Ed.) c. 227, § 7. As applied to this case, immediately material portions of that section read: “If a defendant ... is absent from the commonwealth . . . and no personal service has been made on him . . . the court, upon suggestion thereof by the plaintiff, shall order the action to be continued until notice of the action is given in such manner as it may order.” In our opinion a notice given pursuant to this section is intended in proper cases to do more than to enable the defendant at his option to come in for the sole purpose of defending attached property without incurring further risk. It is intended as a substitute for service of the original writ for all purposes where it can have that effect consistently with the Federal Constitution, with controlling principles of international comity and with other statutes of the Commonwealth. That the original enactments which have since been gathered together into this section were designed to go at least as far as that ' seems reasonably clear from an examination of their language^ Thus by St. 1828, c. 114, service upon a nonresident according to the order of the court “shall be
G. L. (Ter. Ed.) c. 227, § 1, does not help the defendant. That section provides that “A personal action shall not be maintained against a person not an inhabitant of the commonwealth unless he . . . has been served with process in the commonwealth . . . .” The requirement as to service with process in the Commonwealth was first introduced in R. L. c. 170, § 1, when the wording was redrafted so that our statute law should conform to the decisions in Pennoyer v. Neff, 95 U. S. 714, and in Eliot v. McCormick, 144 Mass.
There is nothing in Roberts v. Anheuser Busch Brewing Association, 215 Mass. 341, in conflict with what is here decided.
As the order of notice was not a “writ,” the requirements of seal and teste prescribed by Part II, c. 6, art. 5 of the Constitution and by G. L. (Ter. Ed.) c. 223, § 16, do not apply.
Order denying the defendant’s motion to quash order of notice affirmed.
Order denying the defendant’s motion to dismiss affirmed.