Bishop v. Donnell

Field, C. J. The tendency of modern decisions is to the effect that a domestic judgment may be reviewed or reversed by a proper proceeding between the parties when there has been in fact no legal service of process and no appearance in the cause, even although the proof of such facts tends to contradict the record. The remedy by a suit against the officer for a false return often is inadequate, particularly when a large judgment has been rendered against a defendant without any service upon him, and without his knowledge. The return by an officer of service of process usually is held conclusive in collateral proceedings, but as the facts stated in the return are not facts within the knowledge of the court, it is generally held that the record in this respect maybe impeached by the party directly aggrieved by it if it is false. In the case of a suit on a foreign judgment, the judgment may be impeached by pleading and proving in defence to the suit that the foreign court in fact acquired no jurisdiction over the defendant, although the record Of the case recites due service on him or an appearance by his attorney, and this is true in a suit on a domestic judgment where the defendant was not resident within the Commonwealth when the suit was brought in which the judgment was rendered. The proper proceeding in this Commonwealth for reviewing or reversing a domestic judgment, when the defendant was not resident within the Commonwealth when the suit was brought in which the judgment was rendered, is a writ of error, although such a defendant may also have a writ of review, which is not a writ known to the common law. If the defendant was resident within the Commonwealth when the suit was brought, the proper proceeding is a writ of review, or a petition for a writ of review, and there are dicta to the effect that he may also bring a writ of error. Kimball v. Sweet, 168 Mass. 105. Hall v. Staples, 166 Mass. 399. American Tube & Iron Co. v. Crafts, 156 Mass. 257. Young v. Watson, 155 Mass. 77. Rand v. Hanson, 154 Mass. 87. Needham v. Thayer, 147 Mass. 536. Fall River v. Riley, 140 Mass. 488. Hendrick v. Whittemore, 105 Mass. 23. James v. Townsend, 104 Mass. 367. Hutch [566] inson v. Gurley, 8 Allen, 23. Bodurtha, v. Goodrich, 3 Gray, 508. Brewer v. Holmes, 1 Met. 288. Smith v. Rice, 11 Mass. 507, 512. See Harrison v. Hart, 21 Ill. App. 348; Nietert v. Trentman, 104 Ind. 390; Michels v. Stork, 52 Mich. 260; Bolles v. Bowen, 45 N. H. 124; Nelson v. Swett, 4 N. H. 256; Ketchum v. White, 72 Iowa, 193; 22 Am, & Eng. Encyc. of Law, 194 et seq. If it be assumed, without deciding it, that in the present proceedings it was open to the plaintiff in error to show that no summons, or no sufficient summons, was served upon her, we are of opinion that the mistake in the date of the summons, on the facts found by the presiding justice, is not a sufficient reason for avoiding the judgment. If the officer had been permitted to amend his return in the original action so as to show the date of the summons, and the defendant therein had moved to dismiss the action, the court might have ordered the service of a new summons, as the defendant was within the jurisdiction of the court. If the suit had been in the Superior Court, the decision of that court upon such a motion would have been final. Parker v. Kenyon, 112 Mass. 264. The defect in the service of process was one which the defendant in the original action might have waived. Pub. Sts. c. 187, § 3, is as follows: “ A judgment in a civil action shall not be arrested or reversed for a defect or imperfection in matter of form which might by law have been amended ; nor by reason of a mistake respecting the venue of the action ; nor because the judgment is not in conformity with the allegations of the parties, if it is in conformity with the verdict; nor shall any error in law in a civil action in which the defendant appeared and a verdict was rendered, except such as occurs after verdict, be assigned in a writ of error. But nothing herein contained shall prevent either party from assigning an error affecting the jurisdiction of the court.” In Brown v. Webber, 6 Cush. 560, 564, the court say: “A court, in order to render a valid judgment, must have jurisdiction of the subject matter, and of the persons of the parties. In the language of the statute, (Rev. Sts. c. 100, § 21,) it must be a suit where the person and case may be rightly understood by the court. In order to acquire jurisdiction of the person, he must be served with process, as required by [567] law, by arrest, attachment, and summons, or original summons, or otherwise. If the defendant would object to the irregularity, or want of due service, in this respect, he may do so by plea in abatement, where it is necessary to plead any matter of fact, on which his objection is founded, or by motion to dismiss, where the objection is apparent on the face of the proceedings, or the return of the officer ; and in either case, before pleading generally to the merits. And to enable him to do this, he may appear specially for the purpose of stating such objection, without thereby waiving it. But if he will enter a general appearance, or plead to the merits, or lie by after he is aware of the matter of objection to the jurisdiction, he thereby submits himself to the jurisdiction of the court; and the court, then, having jurisdiction of the subject, and jurisdiction of the persons of the parties, may proceed, and the exception that the suit is brought^ in the wrong county cannot be made in arrest of judgment. Gleason v. Dodd, 4 Met. 333, 339.” If this were a petition for a writ of review, we think that on the facts appearing in evidence it would not be granted. The defendant in the original action was not misled by the mistake in the date of the original summons, and she had full opportunity to appear and defend the action. No error appears in the record itself, and the defect was one which might have been amended if the attention of the court had been called to it. She lay by and made no defence, although she was aware of the mistake in the date of the summons and of the pendency of the action, and she ought not now to be heard in any form of proceeding to contest the validity of the service and judgment. See Arnold v. Maltby, 4 Denio, 498; Morrison v. Underwood, 5 Cush. 52. The ruling of law of the presiding justice, if it be assumed to be erroneous, did her no harm ; it did not affect his findings of fact, and we are of opinion that on those findings she is not entitled to have the judgment reversed. It is unnecessary to decide whether the érrors of fact were well assigned, or whether the plaintiff’s sole remedy was by a petition for a writ of review. St. 1895, c. 234, § 9. Exceptions overruled, and judgment affirmed.