59 Mass. 52 - Morrison v. Underwood — 59 Mass. 52

George W. Morrison vs. Nathan Underwood. S'nce the Eev. Sts. c. 90, § 44, a personal action may be maintained against one • who is out of the state at the time of the service of the writ, if an effectual attachment of the defendant’s property is thereby made, or if the defendant has previously been an inhabitant of the state, and service of the writ is made upon him by leaving a summons at his last and usual place of abode. Whether a plaintiff in error, to reverse a judgment of the court of common pleas, had or had not notice of the suit in which such judgment was rendered, is a question of fact, which may be proved or disproved by paroi evidence. The provisions of the Eev. Sts. c. 92, § 3, for the continuance of an action, in the cases therein mentioned, from term to term, until notice thereof is given in such manner as the court may order, may be waived by a defendant, and judgment consented to by him without a previous continuance, provided the service of the writ is sufficient to give the court jurisdiction of the case and of the parties. Such waiver and consent may be made and proved by paroi. This was a writ of error to reverse a judgment of the court of common pleas, rendered at the April term, 1847, in favor of the defendant in error against the plaintiff in error. The errors assigned were: “ That judgment was rendered by default at the first term, without any continuance, and that the said Morrison, at the time of the service of the original writ, was not an inhabitant or resident within this commonwealth, and that he had no notice of the suit.” The defendant pleaded, that the judgment was not erroneous in any matters of fact, as the plaintiff had alleged against him, and issue was joined on this plea. The defendant filed a specification of his defence, setting forth, that the plaintiff, if he was out of the state at the time of the service of the original writ, was estopped from reversing the judgment; that he intended to return before the entry of the action, and did in fact so return ; that he had notice of the suit, and saw the entry of the same upon the docket; that he was in court during the term, and knew that he had been de« faulted ; that he conversed with the defendant concerning the action, and with his attorney, before and after the entry thereof; that he saw the summons, and was aware, both before and after the suit, of the amount claimed therein; that he knew and admitted that the amount for which judgment was taken was rightly due; that he consented to' the judgment, and. never suggested to the defendant or his attorney, that the writ had not been properly served ; and that it was a benefit to the plaintiff, that the action was not continued. The defendant concluded his specification by alleging that a writ of error did not lie in such a case. The case was tried before Dewey, J., when the following facts appeared in evidence, and were reported by the judge for the consideration of the whole court, subject to all objections on the ground of competency, namely: That in February, 1847, and previous to the service of the wilt, upon which the judgment complained of was founded, the plaintiff had changed his residence from Roxbury, in this state, to Haverhill, in New Hampshire; that he had carried his furniture to the latter place, and had made arrangements for residing there ; that he said, before leaving this state, upon an inquiry why he carried up his furniture, that he preferred carrying it up by sleighing, and that he should not decide whether he would reside in New Hampshire, until after he had been there; and that he was residing there in the summer following. The presiding judge was of opinion, that the evidence was sufficient to show a change of actual residence, at the time of the service of the writ; although the plaintiff was then undecided how long he should remain resident in New Hampshire. The defendant, also, in order to show actual notice to ihe plaintiff of the pendency of the suit, and an assent to a judgment therein, called his attorney as a witness, who testified, that about the 1st of April, 1847, the plaintiff was at his office, wiien the suit in question was spoken of, and the plaintiff said he knew he had been sued, that the summons had been found in the entry of the house at Roxbury, and that he had left several days previous to the time of calling the docket foi April term, 1847 ; that the witness was examining the docket in the clerk’s office, in the presence of the plaintiff, and showed him the entry on the docket, and told him there was the action against him; and that the plaintiff thereupon stated that it was all correct, and that the defendant might take judgment.. H L. Hazelton, for the plaintiff in error. C. G. Davis, for the defendant in error. — Shaw, C. J. (majority) Shaw, C. J. By the Rev. Sts. c. 90, § 44, no personal action shall be maintained against any person out of the state, at the time of the service of the summons, unless he shall have before been an inhabitant of the state, or unless an effectual attachment of property is made on the original writ. By a clear.implication, an action will lie in either of these excepted cases, and that such was the intention of the legislature is manifest from the report of the revising commissioners, in their comments upon the corresponding section (c. 90, § 39) in their report. By § 45 of the same chapter it is provided, that service shall be made by leaving a summons at the defendant’s last and usual place of abode. In the present case, a summons was left at the last and usual place of abode of the plaintiff in error in Roxbury. This was sufficient to give the court, to which the writ was returnable, jurisdiction of the action and of the parties. The fact, therefore, assigned for error, to wit, that the original defendant was not an inhabitant of the state, and was out of the commonwealth, at the time of the .service of the writ, is no error, and no cause for reversing the judgment. 2. Another error assigned is, that the defendant had no notice of Ihe suit. This is a pure allegation of matter of fact, which does not and cannot appear, one way or the other, on the face of the record, and, therefore, if material, is open t