Lowrie v. Castle

Hammond, J. This case is before us both by appeal and by exceptions of the plaintiff, each relating to an order of the Superior Court dismissing the action against certain non-resident defendants. 1. The first question is whether the service appears to have been sufficient. No property was attached. And the only service upon these defendants was by delivering a summons for each of them to James B. Castle as agent and also to William R. Castle as copartner. The service upon James “as agent” was not sufficient as a service upon them. The case is not distinguishable from Kimball v. Sweet, 168 Mass. 105. The service upon William as copartner was equally bad. Phelps v. Brewer, 9 Cush. 390. D'Arcy v. Ketchum, 11 How. 165. The cases of Moors v. Ladenburg, 178 Mass. 272, and Harriman v. Reading & Lowell Street Railway, 173 Mass. 28, upon which the plaintiff somewhat relies, are clearly distinguishable. 2. The next question is whether the court should have held the case for further service. It is argued by the plaintiff that even if the service was insufficient as a basis for a judgment, yet that it was sufficient to bring the case within R. L. c. 170, § 6, which provides for further service in certain cases, and hence that the dismissal of the action within a month after the filing [88] of the motions to dismiss was premature and erroneous. That statute reads as follows: “If a defendant is absent from the Commonwealth or his residence is not known to the officer serving a writ, and no personal service has been made on him, or if the service of a writ is defective or insufficient by reason of a mistake of the plaintiff or officer as to where or with whom the summons or copy ought to have been left, 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. But if the property of an absent defendant has been attached and the residence of such defendant is known to the plaintiff and no legal service can be made upon him within this Commonwealth, except by publication, the court may order personal service to be made on him in such manner as it may order and, upon proof that service has been made as ordered, such defendant shall be held to answer to the action and no further service shall be necessary. If in any case the defendant does not appear, the court may in its discretion order the action to be continued and further notice given to him in such manner as it may order.” Formerly, to the general rule that no action could be maintained against a person who at the time of the service of the summons was out of the State, there were two exceptions, — the one where he had “ been before that time an inhabitant of the State,” and the other where there had been an effectual attachment of his property. Rev. Sts. c. 90, § 44. Gen. Sts. c. 126, § 1. Pub. Sts. c. 164, § 1. And it was held that a general judgment might be entered against a non-resident provided he had once been a resident. Graves v. Cushman, 131 Mass. 359, and cases cited. In speaking of these exceptions as set forth in Gen. Sts. c. 126, § 1, and the statutes for giving notice by publication and otherwise to a non-resident who before had been an inhabitant, Gray, J., says: “ The object of these provisions is to enable a plaintiff, having a claim against an absent defendant who has once been an inhabitant of this State, to obtain, after taking all reasonable precautions for notifying him of the suit and for securing his rights, a judgment which may be enforced against his property here, and against his person if he returns within the jurisdiction, although a judgment so obtained may [89] not be allowed any force in other States.” Graves v. Cushman, 131 Mass. 359 at p. 362. This case was decided in 1881. In Eliot v. McCormick, 144 Mass. 10 (decided in 1887), however, it was held that under the Fourteenth Amendment to the Federal Constitution a judgment in personam against a person who is not a resident of the State, who does not appear in the action, and who is not served personally with process within the State, is invalid. But when property is attached, the case may proceed to judgment so far as to apply the property to the debt. However, if there is no appearance and no personal service upon him, a judgment rendered against him personally is void, and no suit can be maintained on such judgment either in the same or in any other court. See Pennoyer v. Neff, 95 U. S. 714; Freeman v. Alderson, 119 U. S. 185. In giving the opinion in Eliot v. McCormick, 144 Mass. 10, 12, Morton, C. J., in speaking of these last two cases says: “ These decisions modify the application and effect of our statutes, and overrule the adjudications of this court, so far as they hold that a judgment in personam can be rendered against a non-resident defendant without any other service than attaching his property, or leaving a summons at his last and usual place of abode within the State, followed by such publication of notice as is ordered by the court.” Pub. Sts. c. 164, § 1, has been changed in R. L. c. 170, § 1, to conform to the law as thus laid down. There being no attachment of property in this case, the action cannot be maintained against these non-residents unless they have been served with process in this State, or unless they appear. The provisions of R. L. c. 170, § 6, cannot be held in cases where there is no attachment to apply to cases where the court is unable to give a .notice by publication or otherwise such as will give the court jurisdiction. It is not to be supposed that the section was intended to compel the court to continue for further service a case where it is not within the power of the court to issue any notice upon which it can obtain jurisdiction of the parties or proceed to any valid judgment, or in other words where it is not in the power of the court to issue any further service which shall be operative. 3. It is contended by the plaintiff that the motions to dismiss were not seasonably filed. In support of this contention he [90] argues that unless otherwise specially ordered by the court a motion to dismiss must be filed within the time allowed by law for entering an appearance, that is, within ten days from the return day of the writ. R. L. c. 173, § 54. Rule 9 of the Superior Court. Inasmuch as these motions were not filed within that time, the decision of this branch of the case turns on the validity of the orders. The plaintiff urges that the Superior Court had no power to pass the orders granting further time for entering an appearance. A short answer to the plaintiff’s contention would seem to be that he neither excepted to nor appealed from the orders, and consequently their validity cannot now be questioned by him. Whether right or wrong they must stand as the rule of the case. But a more satisfactory answer perhaps is that the court had the power to pass the orders. Even if, as the plaintiff contends, the case is not within R. L. c. 173, § 54, still there can be no doubt of the power of the court under the circumstances of this case to pass these orders. It is to be borne in mind that this is not a case where a defendant, upon whom process has been duly served and who therefore is within the jurisdiction of the court and liable to default if he does not seasonably appear, asks for delay. It is a case where a non-resident defendant who for lack of service upon him is not within the jurisdiction and cannot be brought within it, fearing lest the court may regard the service sufficient and default him, comes into court and says in substance that he is in doubt whether to waive proper service and voluntarily appear, or to insist upon his rights as a non-resident, and asks for time to decide. Certainly it is a part of the inherent power in a court to set a time within which the non-resident must make up his mind and act accordingly. And that was all the court did. The motions for dismissal were properly before the court.- 4. The plaintiff further contends that by applying for and obtaining an extension of time for appearing, and by suggesting that the officer’s return be amended, the defendants waived all objection to the service of process upon them. This position is untenable. And this is so even if the acts of Mr. Sears who, as a lawyer, had been requested by the non-resident persons named as defendants in the suit “ to safeguard their respective interests in said suit,” are to be taken as the personal acts of the clients. [91] He did no act inconsistent with the motions to dismiss. In the matter of the amendment of the officer’s return, Mr. Hemenway appeared as amicus curiae with the consent of the court, and made a suggestion that in case the officer was allowed to amend his return he should add certain words which the officer had not asked to add, in order to comply with the truth. Although at the suggestion of Mr. Hemenway, acting again as amieiis curiae with the consent of the judge and against the objection of the plaintiff, the court heard the matter of the allowance of the amendment of the officer’s return at the same time with the hearing on the motions to dismiss, yet nothing was said either by Mr. Hemenway or by Mr. Sears in reference to the matter of the proposed amendment, and they both stated that they had absolutely no authority to appear generally for these non-resident defendants. In all this we see no waiver. It is all perfectly consistent with the position taken in the motions to dismiss. The defendants had abandoned no outpost. Exceptions overruled; judgment affirmed.