Bristol v. Noyes

• Decision Date: 02 October 1934
• Citation: 174 A. 924
• Court: Vermont Supreme Court
• Parties: BRISTOL et al. v. NOYES.

174 A. 924

BRISTOL et al.

v. NOYES.

Supreme Court of Vermont. Orange.

Oct. 2, 1934.

Exceptions from Orange County Court; John S. Buttles, Judge.

Action of debt upon a judgment by Bennett B. Bristol and another, as trustees under will of Gertrude R. Bristol, against William H. Noyes. To review a judgment for the plaintiff, the defendant brings exceptions.

Reversed and remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE. JJ.

Wilson & Keyser, of Chelsea, and J. Ward Carver, of Barre, for plaintiffs.

Hugh W. Hastings, of Bradford, and Whitfield W. Johnson, of Boston, Mass., for defendant.

MOULTON, Justice.

This is an action of debt upon a judgment obtained by the plaintiffs against the defendant in the superior court of Middlesex county, Mass., on May 1, 1933. The defendant's plea alleged that the Massachusetts court was without jurisdiction to render the judgment, because, at the time of the issuance of the writ, he was not a resident of the commonwealth of Massachusetts, was not personally served with the process, and did not appear and defend the suit. In the court below the judgment was for the plaintiffs, and the case is before us on the defendant's exceptions to the exclusion of certain evidence offered by him during the progress of the trial.

The plaintiffs offered an exemplified copy of the proceedings in the Massachusetts court by which it appeared that personal service had been made upon the defendant on March 8, 1983. It was received in evidence, subject to the defendant's exception. This exception is not briefed, and is therefore waived. Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670; Wood v. James, 93 Vt. 36, 43, 106 A. 566. The remaining three exceptions present essentially the same question and may be considered together.

I. Mrs. Sadie I. Pierce, the daughter of the defendant, was the first witness called by the defendant. She testified that she lived in Maiden, Mass., and was asked: "Where does your Father make his home?" She answered: "Makes his home in Bradford (Vermont) some of the time, and some of the time he is in Maiden, Massachusetts." She was then asked: "Where was Mr. Noyes on the 8th day of March, (1933)?" Upon objection, the defendant offered to show by the witness that he had been stopping with the witness at her home in Maiden, but that, on the day specified, he was in Stoneham, Mass.; that on that day a person purporting to be a deputy sheriff called at the witness' house in Maiden and asked her if Mr. Noyes were there; that, upon informing him that he was not, the officer handed her a paper purporting to be a summons to appear in the superior court for Middlesex county, and asked her to see that Mr. Noyes received it; that she did not deliver it to the defendant; and that the latter knew nothing of the suit until months afterwards. The offer was excluded, and the defendant excepted.

II. The defendant was the next witness, and was asked': "You live in Bradford (Vermont)?" and answered: "Yes." He then testified that during March, 1933, he was stopping with his daughter in Maiden, Mass., and was asked whether, on or about the 8th of that month, any papers in any suit were served upon him. Upon objection, the question was excluded, subject to exception. The offer was to show that no process had been served upon him in the action in which the judgment was based, and that he knew nothing about the pendency of the suit until about a month later, upon his return to Bradford, and that he had never authorized any one to appear and defend for him.

III. Whitfield W. Johnson, a member of the Massachusetts bar, was the third and last witness called by the defendant, and testified that he was familiar with the law of that commonwealth in regard to the requirements for valid service of process. It was offered to show by him that the act of the deputy sheriff in leaving a copy of the summons with Mrs. Pierce did not constitute a valid service of process upon a nonresident, under the Massachusetts law. This offer was excluded, subject to exception.

The objection, in each instance, was that the record of the officer's return of service, which showed a delivery of a copy of the summons "in hand" to the defendant, could not be collaterally attacked.

This contention is without merit it is true that an officer's return, as between the parties to the suit and their privies, imports absolute verity and cannot be contradicted except in a direct proceeding to vacate or annul it (Shapiro v. Reed, 98 Vt. 70, SO, 126 A. 496) but, where the issue presented is the jurisdiction of the court to render the judgment upon which the action is based, a different question arises. While the clause of the United States Constitution (art. 4, § 1), providing that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State," makes the record of a judgment rendered after due notice in the court of one state conclusive evidence in courts of another state, or of the United States, of the matter adjudged, it does not preclude inquiry into the jurisdiction of the court rendering the judgment over the subject-matter or the parties affected by it or into the facts necessary to give such jurisdiction; and it is competent for a defendant in an action upon a judgment obtained against him in a sister state to set up in defense the want of jurisdiction, in that he was not an inhabitant of that state, had not been served with process, and did not enter an appearance. See Wood v. Augustins, 70 Vt. 637, 41 A. 583, wherein the authorities bearing upon this question are cited and discussed; Domenchini's Adm'r v. Hoosac T. & W. R. R., 90 Vt. 451, 457, 98 A. 982.

But, although the particular objection is unavailing, the exclusion of the offered testimony is to be sustained, if it can be, upon any legal ground....