331 F.2d 157 (1st Cir. 1964), 6272, Hanna v. Plumer

Docket Nº:6272.
Citation:331 F.2d 157
Party Name:Eddie V. HANNA, Plaintiff, Appellant, v. Edward M. PLUMER, Jr., Executor, Defendant, Appellee.
Case Date:April 29, 1964
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 157

331 F.2d 157 (1st Cir. 1964)

Eddie V. HANNA, Plaintiff, Appellant,


Edward M. PLUMER, Jr., Executor, Defendant, Appellee.

No. 6272.

United States Court of Appeals, First Circuit.

April 29, 1964

Page 158

Albert P. Zabin, Boston, Mass., with whom Schneider & Reilly, Boston, Mass., was on brief, for appellant.

Alfred E. LoPresti, Boston, Mass., and James T. Connolly, Newburyport, Mass., for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit judges.

ALDRICH, Circuit Judge.

This is an action in which plaintiff, a citizen of Ohio, claims damages in excess of $10,000 for personal injuries as a result of an automobile accident in South Carolina allegedly caused by the negligence of a Massachusetts citizen, now deceased. The defendant, also a Massachusetts citizen, is the decedent's executor. The defendant qualified as executor by filing bond on March 1, 1962. On February 6, 1963 the complaint was filed in the district court for the District of Massachusetts. On February 8 service was made by leaving a copy of the summons with the defendant's wife at his residence, in compliance with F.R.Civ.P. 4(d)(1). The defendant's answer was filed on February 26. The so-called 'short statute of limitations.' Mass. G.L. (Ter.Ed.) c. 197 § 9, provides that actions against an executor must be 'commenced within one year from the time of his giving bond.' In addition to timely commencement, the statute provides that the executor 'shall not be held to answer' unless

Page 159

within the year he had been served in hand, or 'service * * * (is) accepted by him,' or there has been filed in the proper registry of probate a notice identifying the claim, the claimant and 'the court in which the action has been brought.' In her complaint plaintiff alleged that she had already filed the requisite notice in the registry of probate, and asserted that the action had been brought 'within the time required and in accordance with the procedure of the law of the Commonwealth of Massachusetts in filing suit against the said decedent's Estate.' Defendant's answer denied these allegations, and affirmatively alleged that the action could not be maintained because it had been 'brought contrary to and in violation of the provisions of * * * Section 9.' At the time the answer was filed it was in fact still possible to comply with the statute. However, plaintiff took no further action.

After March 1, 1963 defendant moved for summary judgment with an affidavit revealing that the notice filed in the probate registry made no mention of the court in which the action had been or even was to be brought, or, indeed, that any action was even contemplated. No countering affidavit was filed. The notice thus must be taken as materially defective. Cf. United States v. Saxe, 1 Cir., 1958, 261 F.2d 316, 320. Alternatively, the service of process did not satisfy the special notice requirements of the executor's statute, not having been made in hand, nor had the defendant in terms accepted service. The district court, holding the Massachusetts statute...

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