Young v. Providence & Stonington Steamship Co.

W. Allen, J. We think that the judgment must be taken to be a judgment upon the plea in abatement. The motion to dismiss was for the alleged defect in the writ, that it did not show whether the law under which the defendant was organized was a law of this Commonwealth, and for the alleged defect in the return of service, that it did not show that the person upon whom the writ was served as the agent of the defendant was in fact such agent. Afterwards, the defendant, in its answer, put in issue upon the record the fact that it was a foreign corporation, and that the person was not its agent. The case was heard upon the whole' record, which showed the facts; and although the court heard and passed upon both the motion and the answer at the same time, yet it did not and could not have rendered judgment upon both, either simultaneously or successively. The judgment for the defendant ordered by the court must be taken to be a judgment upon the answer in abatement, as that is the only judgment for the defendant which can be properly entered upon the whole record. Jordan v. Siefert, 126 Mass. 25. The first question is whether an appeal lies from the judgment. The plaintiff contends that an appeal lies from the judgment of the Superior Court on an answer in abatement except when it is for defect of form of process. The Pub. Sts. — 553 — c. 152, § 10, provide that “ a party aggrieved by a judgment founded upon matter of law, apparent on the record, . . . except a judgment upon an answer or plea in abatement or motion to dismiss for defect of form of process,” may appeal. The Pub. Sts. c. 153, § 8, provide that decisions of a judge “ upon pleas in abatement or motions to dismiss for defect of form in process, shall be final on the question raised.” It is contended by the plaintiff that an appeal is denied from a judgment on an answer in abatement only when it is for defect of form of process. But we do not so construe the statute. The natural construction of it does not connect the words “ defect of form of process ” with answers in abatement, but only with motions to dismiss. That this is the meaning appears from the history of the statute. The Rev. Sts. c. 82, § 6, gave an appeal from any judgment of the Court of Common Pleas when the demand exceeded one hundred dollars, or when the title to real estate was concerned, or when the judgment was on matters of law apparent on the record, and included judgments on pleas in abatement. The St. of 1840, c. 87, revised the jurisdiction of the Supreme Judicial Court and of the Court of Common Pleas. It took away all appeals from' verdicts, and provided, in § 4: “ But all questions of law, except such as may arise upon pleas in abatement, may be carried up to the Supreme Judicial Court by bill of ex-, ceptions or writ of error.” Section 5 gave an appeal to “ any party aggrieved by any judgment of the Court of Common Pleas, founded upon matter of law apparent on the record, except judgment upon pleas in abatement.” The St. of 1859, c. 196, which established the Superior Court, contained the same, provision in § 26, with the addition of the words, “ or motion to dismiss for defect in form of process.” Section 27 gave an appeal to any party aggrieved by a ruling in matter of law, “ except upon questions arising on pleas in abatement or motions to dismiss, except for defect of form of process.” The Gen. Sts. c. 114, § 10, and c. 115, § 7, were the same as the Pub. Sts. c. 152, § 10, and c. 153, § 8. The St. of 1874, c. 271, § 11, relating to the municipal courts in Boston, contained the same provision, with a significant difference in punctuation, “ upon pleas in abatement, or motions to dismiss for defect of form — 554 — in process, the decision of said courts shall be final.” Giving effect to the punctuation in the last cited statute, there can be no doubt in regard to its meaning. It cannot be supposed that the Legislature, in applying the provision to municipal courts, intended to change its meaning, and enlarge the final jurisdiction given by it. The authorities are abundant and conclusive, that the final jurisdiction of the Superior Court in answers in abatement is not limited to defects in form of process. Bartol v. Stanwood, 7 Cush. 115. Morey v. Whittenton Mills, 8 Cush. 374. Willard v. Stone, 13 Gray, 475. Blackmer v. Davis, 16 Gray, 120. Richmond v. Whittlesey, 2 Allen, 230. Stackpole v. Hunt, 9 Allen, 539. Hamlin v. Jacobs, 99 Mass. 500. Houghton v. Ware, 113 Mass. 49. Wildes v. Marshall, 117 Mass. 311. The question then is whether the answer is an answer in abatement within the meaning of the statute. The answer is in form an answer in abatement, (Pub. Sts. c. 167,) and concludes in the statute form, that the defendant “ ought not to be held to answer the plaintiff’s writ.” It seeks to have the writ abated for the reason that there was not such service upon the defendant as to give the court jurisdiction of its person. Giving all the effect claimed by the defendant to the averments of the answer, they are, that the defendant is a foreign corporation, that it had no usual place of business in this Commonwealth, that no property was attached on the writ, and that the person on whom service of the writ was made was not its agent, and was not authorized to receive service of process for it. The objection is that this is not an answer in abatement, but to the jurisdiction or in bar. We agree that the substance, and not the form, of the answer should be looked at, to determine the nature of the defence set up by it, but we think that it is settled by the more recent decisions of this court that the substance of this answer must be taken to be matter in abatement, though formerly the rule may have been otherwise, as indicated in Rea v. Hayden, 3 Mass. 24; Lawrence v. Smith, 5 Mass. 362; Tingley v. Bateman, 10 Mass. 343. It is held by a series of decisions that a non-resident natural person who is out of the Commonwealth, and amenable to process here only by the attachment of his property, can plead in abatement that the property attached — 555 — on the writ as his was not in fact his. Gardner v. Barker, 12 Mass. 36. Jacobs v. Mellen, 14 Mass. 132. Guild v. Richardson, 6 Pick. 364. Nye v. Liscomb, 21 Pick. 263. In Bartol v. Stanwood, 7 Cush. 115, which was an action against a non-resident, in which the only service of the writ was by attachment of property, it was held that a plea that the property was not his was a plea in abatement, on which the judgment of the Court of Common Pleas was final, under the St. of 1840, c. 87. Richmond v. Whittlesey, 2 Allen, 230, was a case in which a resident of the State of New York who was served with process in this Commonwealth answered in abatement, that he was not amenable to the jurisdiction of the court, because he was brought into this Commonwealth on a requisition to answer an indictment, and was in attendance at court to answer thereto when he was served with process, and that the indictment and requisition were procured by the plaintiff for the purpose of enabling him to make such service on the defendant. It was held that the judgment of the Superior Court on the answer was final, under the Gen. Sts. c. 115, § 7. In Wood v. Mann, 1 Sumner, 578, it was held that the residence of a party as affecting the jurisdiction of the court must be pleaded in abatement. We cannot distinguish in principle the cases cited from the case at bar. There is no more jurisdiction over the person of a non-resident natural person, not within the Commonwealth, than there is over a foreign, corporation, and the courts of this Commonwealth acquire no more jurisdiction of the person of the one than of the other by the attachment of property. Any jurisdiction over persons or property in either case must be derived from statute. The difference is that the statute (Pub. Sts. c. 164, § 1) prohibits an action against a non-resident natural person unless an attachment of his property is made on the writ; and the Pub. Sts. c. 105, § 28, make corporations of other States having property in this Commonwealth liable to be sued here, and their property liable to attachment, as if they were natural persons resident of other States. The jurisdiction of the Common wealth over foreign corporations coming into this State by their agents to do business has long been exercised in relation to' insurance companies, by making them personally amenable to the jurisdiction of its courts, and was extended by — 556 — the St. of 1884, e. 330, to all foreign corporations having a usual place of business in this Commonwealth, by requiring them to appoint an attorney to receive service of process upon them. We see no reason that a different rule of pleading should apply in an action against a natural person and an action against a corporation. In each case the court has general jurisdiction of the person, so that the want of service of process may be waived. In the case at bar, the writ and service apparently gave the court jurisdiction of the defendant. • In Greenwood v. Lake Shore Railroad, 10 Gray, 373, the defendant was described in the writ as a foreign corporation, and the like service was made as in this case. No objection to the service was taken in that case. The question we are considering is only in what form and under what rules a defendant corporation may bring before the court the facts, not appearing on the writ and return, that show that it is not bound to answer to the process of the court. We do not find in the decisions of this court any distinction in this respect between non-resident natural persons and foreign corporations. Peckham v. North Parish in Haverhill, 16 Pick. 274, decided that a plea in abatement of the non-joinder of a parish in New Hampshire as co-contractor and defendant was bad, on the ground that the New Hampshire parish was not liable to be sued in this State. The court say: “It is a sufficient objection to the plea, that it does not aver any fact to show, that the society in Plaistow was liable to be sued in this Commonwealth; and we think it was not liable, because no writ can, by our laws, be legally served against a corporation in another State.” The reason applies equally to a non-resident natural person. For cases in which the jurisdiction of the courts of this Commonwealth over foreign corporations is considered, see Silloway v. Columbia, Ins. Co. 8 Gray, 199; Smith v. Mutual Life Ins. Co. 14 Allen, 336 ; Folger v. Columbian Ins. Co. 99 Mass. 267; National Bank of Commerce v. Huntington, 129 Mass. 444 ; Desper v. Continental Water Meter Co. 137 Mass. 252; Lewis v. Northern Railroad, 139 Mass. 294. In Andrews v. Michigan Central Railroad, 99 Mass. 534, it was decided that a corporation of another State having a usual place of business in this Commonwealth could be sued here only by an attachment of its — 557 — property, or by virtue of other statute provisions, like those relating to foreign insurance companies. Such provisions are now extended to all foreign corporations. The objection was apparent on the record in that case, and was taken by motion to dismiss, and carried up by appeal. No question was suggested of the right of appeal. Had the fact that the defendant was a foreign corporation not appeared in the writ, and had that fact been pleaded in abatement, we think that in that -case, as in this, there would have been no right of appeal from the judgment upon the answer. Appeal dismissed.