Thayer v. Tyler

Dewey, J.

It is difficult to ascertain satisfactorily the precise intent of the legislature in the enactments in the Rev. Sts. c. 90 and c. 92, in relation to the service of writs upon absent defendants, and particularly as to the necessity of a continuance of the action and an order of the court for further notice to the defendant.

In the case of Leonard v. Bryant, 2 Cush. 32, where the tenant in a real action was out of the State at the time of the service, and not then a resident or inhabitant, although he formerly had been, and, as the facts add, then “ had no last and usual place of abode in Massachusetts,” it was held, that, in addition to the service, prescribed in c. 90, § 47, of leaving a summons with the tenant of the premises, the case should be continued and notice given in the manner prescribed in c. 92. § 3; and a judgment rendered at the first term upon default was held invalid, and subject to be avoided by a third party ? without a writ of error.

In the case of Downs v. Fuller, 2 Met. 135, which was a ca.se *167of an absent debtor having left his family here, but himself an absconding debtor, a judgment taken by the plaintiff at the first term, and without complying with the provisions of c. 92, § 3, was held invalid and voidable by a third party.

In the case of Packard v. Matthews, 9 Gray, 311, the defendant was at the time of the service out of the Commonwealth, and not a resident within the same. Upon a return by the officer that he left a summons for each defendant “ at their last and usual place of abode, they being out of the Commonwealth at the time,” a writ of error was maintained on the part of the defendant, and the judgment reversed, for want of a continuance and order of notice to the party.

The case of Morrison v. Underwood, 5 Cush. 52, relied upon by the plaintiffs, was decided by the court upon the single ground of a waiver of further service and a judgment taken by consent; and was not intended to overrule the cases of Downs v. Fuller and Leonard v. Bryant, although those cases do not seem to have been adverted to in the published opinion of the court. The case of Downs v. Fuller would have required the reversal of that judgment, but for the other circumstances appearing in the case, which it was thought removed the ground for sustaining a writ of error.

It is however contended that a distinction exists between persons who have never been inhabitants of the State and those who have removed therefrom, including those temporarily absent ; and it is said that foreign corporations are embraced in the class of those who have never been inhabitants here, and the service to be made on them is of the latter character.

Upon this point, the argument on the part of the plaintiffs is that § 48 having used the words “ when the defendant is out of the State,” which are the same words used in § 45 in describing a class of persons in distinction from those who never were inhabitants of the State,” its provisions must be confined to that class ; and if there were no other provisions to be considered in connection therewith, certainly the argument would be a plausible one. But upon recurring to this chapter of the revised statutes, it will be seen that in § 44 the phrase a person *168out of the State” is clearly used to embrace those who have formerly been inhabitants as well as those who never were inhabitants. So also in § 47, in reference to real actions, the phrase is used in the same double aspect. Indeed, we have in the case of Leonard v. Bryant, supra, directly decided that § 48 does apply to “ defendants out of the State ” in real actions, and that c. 92, § 3, does apply to that class of cases. The words of § 48 of c. 90, and § 3 of c. 92, seem to apply to all cases of defendants out of the State at the time of the service of the summons, and to embrace as well those who never were inhabitants of the State as those who once had a domicil here.

If the case were therefore that of an individual, the provisions of the statute were not complied with, and the judgment was invalid for that cause.

The further inquiry is, whether the like rule in all respects applies to foreign corporations, as to individuals residing without the State. This is regulated by St. 1839, c. 158 : “ The service of the writ in such case shall be made in the manner provided in the ninetieth and ninety-second chapters of the revised statutes, with such further service, if any, as the court to which the writ is returnable may order.” It is said on the part of the plaintiffs that c. 92 does not provide at all for service, but merely for notice to the party served, and so is not applicable. We think this construction will not do; but on the contrary that the proper view to be taken is, that the legislature in the act of 1839 intended to use the word “ service ” as properly descriptive of all that was required to be done by c. 92, and that they did not consider the service fully completed independently of the performance of the acts required by c. 92. In addition to all that was required by cc. 90 and 92, they authorize and require such further service as the court may order.

It is then said that a foreign corporation, having an agency established here, and a branch of their business here, should be treated as a domestic corporation for the service of writs. If this were so, there would seem to be no proper officer to serve processes upon, nothing beyond an agent to make insurances. However this might have been independently of the provisions *169of St. 1851, c. 331, it would seem that by that enactment, requiring every such foreign corporation, before transacting any business within this state, tó appoint by a written power, duly filed with the secretary of this commonwealth, some person resident therein their attorney, and providing that service of process upon such attorney shall be deemed to be sufficient service upon his principals, ample provision was made to secure the rights of creditors in Massachusetts, and to furnish all reasonable facilities for serving process on foreign corporations doing business here, and that no necessity exists for introducing an exception of a very doubtful character based solely upon the fact that such corporation was transacting business here. Such attorney was duly- appointed in the present case, and a service upon him would have been effectual as against his principals. But no such service was made.

Can the defendant, on this writ of scire facias, avail himself of the invalidity of this judgment against the principal defendants ? As a general rule, on such scire facias nothing could be pleaded which he might have pleaded in the original suit. But the answer to this objection is that prior to the time of the rendition of this judgment there was no cause of' complaint on the part of the defendant. The preliminary proceedings were correct, the case was properly in court, and the defendant could not have pleaded a want of proper service, but the court might at any time during the term, on suggestion of the plaintiffs, order a continuance and further notice to the principal defendants. The time for those acts had not yet passed, and no ground existed for complaint or objection in that re spect. The judgment having been taken under these circumstances, the present defendant had no "day in court to interpose this objection, and has been guilty of no loches in respect thereto.

Such being the case, and the judgment against the principal being shown to be invalid, this defence must avail the trustee, when sought to be charged on the scire facias.

Judgment for the defendant