Atlas Elevator Co., Inc. v. Stasinos
| Decision Date | 30 April 1976 |
| Citation | 345 N.E.2d 921,4 Mass.App.Ct. 285 |
| Parties | ATLAS ELEVATOR CO., INC. v. Michael STASINOS. |
| Court | Appeals Court of Massachusetts |
Morris J. Gordon, Lynn, and Jeffrey L. Musman, Nahant, for defendant.
Herbert H. Hershfang, Boston, for plaintiff.
Before HALE, C.J., and KEVILLE and ARMSTRONG, JJ.
This is an appeal from the denial of a motion to vacate judgment. The plaintiff brought a bill in equity against the defendant on March 22, 1974, seeking to establish the defendant's indebtedness to the plaintiff and to restrain the transfer by the defendant of certain shares of stock until payment of any sums found due to the plaintiff. The defendant was served by means of substitute service pursuant to G.L. c. 223, § 31, by delivery of a subpoena and notice to the home of the defendant's wife (from whom he was separated) and his family at 15 Canterbury Drive, Peabody. The sheriff's return stated, 'I served the within subpoena and notice and temporary restraining order upon the within-named defendant, Michael Stasinos, . . . and summoned him to appear and show cause at court as within directed, by leaving at his last and usual place of abode at No. 15 Canterbury Drive, Peabody, Massachusetts, a true and attested copy of the within precept, with an adult person.' The defendant failed to appear at the time shown in the subpoena for the hearing on the application for a preliminary injunction; he filed no appearance or answer on the return day (May 6, 1974); nor did he do so at any time thereafter. The plaintiff moved for entry of a decree pro confesso on June 4, 1974. An interlocutory decree taking the bill to be confessed was entered the same day. On August 2, 1974, a master was appointed to assess damages, and the report of the master was adopted by the court on September 13, 1974. Judgment was entered on October 23, 1974.
On December 23, 1974, the defendant moved to vacate and set aside the judgment, contending that the judgment was void as there had been no service of process on him and that the court therefore lacked jurisdiction to enter a judgment against him. After a hearing a judge of the Superior Court denied that motion.
The allowance of the defendant's motion was not required as a matter of law (Mass.R.Civ.P. 60(b)(4)), the court had jurisdiction over the person of the defendant. The defendant's contention is that service was not made at his last and usual place of abode within the meaning of G.L. c. 223, § 31, because he had ceased to reside with his wife in February of 1974, and had taken up residence in Hyannis. We cannot accept that contention.
It has long been established 'that the general rule in this Commonwealth is that, as between the parties and their privies, the return of the officer is conclusive as to all matters which are properly the subject of the return . . . If the return is false, the remedy of the party injured is against the officer (citations omitted).' Union Sav. Bank of Boston v. Cameron, 319 Mass. 235, 236, 65 N.E.2d 313, 314 (1946), and cases cited therein. The fact that service was made at the last and usual place of abode in the Commonwealth known to the officer is one properly the subject of the sheriff's return. Stewart v. Griswold, 134 Mass. 391, 393 (1883); Bay State Wholesale Drug Co. v. Whitman, 280 Mass. 188, 194--195, 182 N.E. 361 (1932). 1 Although the sheriff's return in the present case did not state that the last and usual place of abode was known to him, that knowledge may be implied. Joyce v. Thompson, 230 Mass. 254, 255, 119 N.E. 777 (1918).
We see nothing inconsistent with our conclusion in the recent pre-judgment remedy due process cases, such as Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). The law of a state may result in the delay or postponement of a remedy without violating due process. See...
To continue reading
Request your trial
-
Bills v. Nunno
... ... at 324, 73 N.E.2d 595; American Oil Co. v. Alexanderian, 338 Mass. 112, 115, 154 N.E.2d 127 ... Bartlett v. The Roosevelt, Inc., 258 Mass. 494, 497, 155 N.E. 459 (1927). See Tucker v ... ...
-
U.S. v. Casciano
...no prejudice has accrued. See 927 F.Supp. at 60. Thus, Judge Munson cited such Massachusetts cases as Atlas Elevator Co., Inc. v. Stasinos, 4 Mass.App.Ct. 285, 345 N.E.2d 921 (1976); City Council of Waltham v. Board of Appeals of Waltham, 5 Mass.App.Ct. 773, 359 N.E.2d 651, 652 (1977) (stat......
-
Lucy Jones & Others 1 v. Others2
...The judgment was not void, as a matter of law, as that concept is understood by rule 60(b)(4). See Atlas Elevator Co. v. Stasinos, 4 Mass.App.Ct. 285, 287–288 & n. 2, 345 N.E.2d 921 (1976); City Council of Waltham v. Board of Appeals of Waltham, 5 Mass.App.Ct. 773, 774, 359 N.E.2d 651 (1977......
-
US v. Casciano
...context of a later proceeding when the defendant has had actual notice, and no prejudice has accrued. In Atlas Elevator Co. v. Stasinos, 4 Mass.App.Ct. 285, 345 N.E.2d 921 (1976), for instance, the Massachusetts Appeals Court refused postjudgment relief based on improper service of process.......