135 Mass. 411 | Mass. | 1883
The first question in this case is whether the service of the notice by the defendant was sufficient.
The statute applicable to the case requires that the notice shall be served “ by giving to the plaintiff or creditor, his agent
The St. of 1855, c. 444, § 4, provided that the notice should be served “ by giving him an attested copy thereof; ” and this provision continues to the present day. St. 1857, c. 141, § 4. Gen. Sts. c. 124, § 13. Pub. Sts. c. 162, § 32. There is no reason to suppose that, in the St. of 1855 and the subsequent statutes, by omitting the words “in hand,” the Legislature intended to make any change in the mode of service. Giving a copy to the creditor means the same as “ giving in hand ” a copy. In the statutes as to the service of a summons in a civil action, the provision is that it may be served “ by reading it to the defendant, or by delivering to him a copy thereof attested by the officer.” Gen. Sts. c. 123, § 23. This is immediately followed by a provision in § 25, that, “if the summons is not served personally on the defendant,” it may be left at his last and usual place of abode, clearly implying that the service provided by § 23 was understood and intended to be a personal service. The expressions “ delivering a copy ” and “ giving a copy ” mean the same thing, and each imports that the copy is to be handed to a person who must be in the presence of the officer. Sending a copy by mail or by the hands of a third person is not a sufficient service, although the officer may be satisfied that it reached the person for whom it was intended. The law intends that, before he can make his return, which for many purposes is conclusive, he shall have personal knowledge that the copy was given to the creditor or attorney.
In this case, the defendant did not make personal service upon Jones, the attorney of the creditor, but left the copy at his residence ; and his service was therefore insufficient, and did not justify his return that he had “ served ” the notice upon Jones, the attorney. This being so, it was undoubtedly competent for Jones to waive the irregularity of service. The defendant
The defendant also contended that there was a waiver by the attorney to whom Jones sent the notice, by his proceedings before the magistrate. This question was referred to in the opinion at the former hearing of this case, but was not decided, because not raised by the bill of exceptions.
If service of the notice is irregular, the magistrate acquires no compulsory jurisdiction over the creditor, who may entirely disregard the notice and treat the proceedings as invalid and of no effect as to him; or he may appear generally, and thus waive the defect of service; or he may, if he sees fit, appear specially for the purpose of objecting to the jurisdiction. If he adopts the latter course, it is his duty promptly to make his objection to the jurisdiction. He cannot, consistently with good faith, conceal the defect of service from the magistrate and debtor, and take part generally in the proceedings. If he does so, he waives his objection. By referring any question to the magistrate other than that of the jurisdiction itself, he acknowledges that jurisdiction. '
In this case the creditor’s attorney appeared before the magistrate at the time fixed for the examination, and filed a special appearance, reserving all objections to the notice and service, but not specifying the alleged informality in the service. The