Bishop v. Donnell
| Decision Date | 31 August 1898 |
| Parties | BISHOP v. DONNELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
At the hearing of this case before Knowlton, J without a jury, it appeared that on November 7, 1896, the paper, a copy of which is hereto annexed marked "Exhibit A," was delivered to the plaintiff in error by an officer duly authorized to serve writs. The officer testified that he then told her when she was to appear at court, and that she told him what the suit was for. It was proved, and she admitted, that about 10 o'clock a.m. on November 14, 1896, the plaintiff in error, with her husband and his attorney, which attorney represents her in this proceeding, were together on the stairway of the building in which the police court of Chelsea is regularly held, which stairway leads to the hall adjacent to the police-court room and that she was then told by the attorney that the writ in the action of Frank P. Donnell against her was returnable before the police court on that day and at about that hour and that the date intended to be inserted in the summons served upon her was October 29, 1896, instead of October 29, 1890. It appeared that the attorney went into court and examined the writ, and came away without informing the court or the attorney of the plaintiff in the original action of the mistake in the date of the summons. The return of the officer was in the usual form, setting forth due service of a summons upon the defendant. The presiding justice found as a fact that the plaintiff in error knew of the mistake in the date of the summons before the time for appearance, and that she purposely refrained from appearing in answer to the suit on account of the mistake. The counsel for the plaintiff in error contended as follows: (1) That the plaintiff in error had not been served with original process, in contemplation of law. (2) That she had in no degree waived her right thereto by appearance or otherwise. (3) As matter of law, that neither the said so-called summons, which was lacking in not containing precise and correct notice of the time of the holding of the court at which she was called upon to appear, nor the information obtained as aforesaid in contradiction of that contained in the so-called summons, made her responsible to said police court of Chelsea; that there was absence of notice to her to attend, such as she was bound in law to respect; and he asked the court to rule that she was entitled to have the judgment reversed. Inasmuch as the record showed due service, and no error was apparent of record, the presiding justice was of opinion that the plaintiff in error had a remedy against the officer who served the writ in an action at law for making a false return, to recover the damages caused thereby, if any, and that she was not entitled to a remedy in this form of proceeding. He thereupon refused to rule as requested. To this refusal to rule the plaintiff excepts, and prays that her exceptions may be allowed.
G.A. Emerson, for plaintiff.
W.J. Williams, for defendant.
The tendency of modern decisions is to the effect that a domestic judgment may be reviewed or reversed by a proper proceeding between the parties, when there has been in fact no legal service of process, and no appearance in the cause, even although the proof of such facts tends to contradict the record. The remedy by a suit against the officer for a false return often is inadequate, particularly when a large judgment has been rendered against a defendant without any service upon him and without his knowledge. The return by an officer of service of process usually is held conclusive in collateral proceedings, but, as the facts stated in the return are not facts within the knowledge of the court, it is generally held that the record in this respect may be impeached by the party directly aggrieved by it, if it is false. In the case of a suit on a foreign judgment, the judgment may be impeached by pleading and proving in defense to the suit that the foreign court in fact acquired no jurisdiction over the defendant, although the record of the case recites due service on him or an appearance by his attorney; and this is true in a suit on a domestic judgment, where the defendant was not resident within the commonwealth when the suit was brought in which the judgment was rendered. The proper proceeding in this commonwealth for reviewing or reversing a domestic judgment, when the defendant was not resident within the commonwealth when the suit was brought in which the judgment was rendered, is a writ of error, although such a defendant may also have a writ of review, which is not a writ known to the common laws. If the defendant was resident within the commonwealth when the suit was brought, the proper proceeding is a writ of review, or a petition for a writ of review, and there are dicta to the effect that he may also bring a writ of error. Kimball v. Sweet, 168 Mass. 105, 46 N.E. 409; Hall v. Staples, 166 Mass. 399, 44 N.E. 351; Iron Co. v. Crafts, 156...
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