Tilden v. Johnson

60 Mass. 354 | Mass. | 1850

Dewey, J.

The general entry of an attorney for all the defendants in the original action was sufficient, '£ it had been properly made, and the record had remained unamended, to have avoided all objection to the want of service on Howard Tilden. But this appearance was entered by mistake, and the court of common pleas allowed an amendment thereof, according to the truth, which confined the appearance of the attorney to Martin Hayward, Junior, alone. We have no doubt of the power of that court to make the amendment in the manner in which it was allowed. Stickney v. Davis, 17 Pick. 169.

This presents the case in reference to Howard Tilden as though no appearance had been entered in his behalf, and opens the inquiry whether a legal service was made upon him. The service is said to be defective in not conforming to the provisions of the Rev. Sts. c. 90, §§ 45 and 46. By the former of these sections, it is provided, that “ If the defendant is out of the state at the time of the service of the summons, the service thereof shall be made by leaving it, if it is a separate summons, at his last and usual place of abode, if there be any within the state.” By § 46, “ If the absent defendant, whose goods or estate are attached, is sued with one or more others on a joint contract, and if he has no such tenant, agent, or attorney, within the state, the copy of the summons for him shall be left with one of the co-defendants, if there be any within the state.”

But the return of the officer, who served the writ, is supposed by the defendant in error to be conclusive on thk- point, it being stated in such return by the officer as follows: “ The within-named Howard Tilden not having any residence, last and usual place of abode, or agent, or attorney within my precinct, I have been unable to summon him.” What is the legal effect of this return ? As between parties and privies, the return of an officer is to be taken to be true, and is only to be controverted in an action against the officer for a false return. This is so as to all matters which are properly the subject of a return by the officer.

We are then brought to the inquiry, how far this fact of the party’s having his last and usual place of abode in the state is one to be passed upon bj the officer, and made the subject of ttis return. In our view, this return can only properly be understood as a return, that no such last and usual abode of the party, within the state, was known to the officer. To this extent he may properly certify the fact in his return. Beyond this, we think his return is not conclusive; and it is open to the party to show, under proper pleading and proofs, that he was such resident, having a last and usual place of abode here, and thus abate the writ for want of proper service.

This defect may be taken advantage of, either by plea in abatement, or by a writ of error, assigning for the error the fact that the party had a last and usual place of abode within the state, at the time of the service, and that no summons or copy was left as required by Rev. Sts. c. 90, § 45.

The case is therefore properly before us, and the next inquiry is as to the fact, in reference to the last and usual place of abode of Howard Tilden. He was born in this commonwealth, owned real estate here, and continued to live here until 1841, when he removed to Philadelphia. ' This brings the case within the provisions of the statute, giving to the words, “ the last and usual place of abode, if any within the state,” the meaning that has been commonly attached to them, as used in this and former statutes directing the mode of serving writs.. This objection to the service may be assigned as a cause of error, and for this the judgment may be reversed.

If this is not a sufficient ground for a reversal, there is also the other objection arising upon § 46, requiring a copy of the summons to be left with the co-defendant for Howard Tilden, the absent defendant; and the omission of which would seem to be a good cause for sustaining this writ of error.

We perceive no objection to the form in which this error is assigned.

The result is, that judgment is to be entered for the plaintiffs in error, and the former judgment reversed.