Doyle v. Moylan

Decision Date03 May 1956
Docket NumberCiv. A. No. 56-20.
PartiesJohn DOYLE v. Margaret G. MOYLAN, Ex'x.
CourtU.S. District Court — District of Massachusetts

Robert A. Shea, Boston, Mass., for plaintiff.

Frank T. Raleigh, Springfield, Mass., for defendant.

ALDRICH, District Judge.

This is a motion for summary judgment made by the defendant on the ground that service of process was not made within the statutory period.

On June 22 or 23, 1954, plaintiff's counsel prepared a complaint against the defendant executrix for an alleged indebtedness of the estate, the same claim involved in the present suit. The complaint was filed in this court June 23, and that afternoon counsel conferred with the marshal's office with regard to service. He had not brought the necessary funds to make payment in advance, and accordingly returned the next morning. At that time there was a further conference. What took place at that conference is disputed, but in view of the fact that this is a motion for summary judgment, even though I received testimony, I must consider it in the light most favorable to the plaintiff. This would permit a jury to find that counsel told the Deputy Marshal that since this was an action against an estate, and the executrix had qualified on June 26, 1953, service must be made in hand upon her by June 25; that the deputy understood about the date but did not understand that service in hand was essential; that he went to defendant's home on June 25 and was told her particular whereabouts was not then known, and made only the customary "last and usual" under, Fed. Rules Civ.Proc. rule 4(d) (1), 28 U.S. C.A. This service was insufficient under the special Massachusetts statute. Mass. G.L.(Ter.Ed.) ch. 197, § 9. In November, 1955 the action was dismissed. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, rehearing denied 338 U.S. 839, 70 S.Ct. 33, 94 L.Ed. 513; Doyle v. Moylan, Ex'x, D.C.D.Mass. CA-54-507-A. The present action, thereafter brought, may be maintained only by showing that the former action "failed of a sufficient service or return by an unavoidable accident." Mass.G.L.(Ter.Ed.) ch. 197, § 12.

The term "unavoidable" has been variously defined by the Massachusetts court. The court holds that a liberal interpretation is to be given it in this particular connection. Duff v. Zonis, 327 Mass. 347, 99 N.E.2d 47. Therefore the strict rule of French v. Pirnie, 240 Mass. 489, 134 N.E. 353, 20 A.L.R. 1098, construing "unavoidable casualty" as one not avoidable by any human prudence, foresight, or sagacity, is not to be followed. See also Davenport v. Squibb, 320 Mass. 629, 631, 70 N.E.2d 793. However, unavoidable is still a strong word. In Duff v. Zonis counsel attempted service upon a nonexisting defendant. The court took pains to point out that this was a natural error due to defendant's own conduct, that counsel had been diligent, and had made an unforeseeable mistake. In view of the other definitions the court has given "unavoidable," I believe Zonis goes to the limit of a liberal interpretation.

In the case at bar it scarcely seems unforeseeable that the deputy, having but one day, or, at best, two, to make service, might fail to make service in hand, even if his instructions...

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4 cases
  • Hanna v. Plumer
    • United States
    • U.S. Supreme Court
    • April 26, 1965
    ...of which is to speed the settlement of estates, Spaulding v. McConnell, 307 Mass. 144, 146, 29 N.E.2d 713, 715 (1940); Doyle v. Moylan, 141 F.Supp. 95 (D.C.D.Mass.1956), is not involved in this case, since the action clearly was timely commenced. (Respondent filed bond on March 1, 1962; the......
  • Hossler v. Barry
    • United States
    • Maine Supreme Court
    • June 26, 1979
    ...estate. Massachusetts has a not insubstantial interest in having its estates distributed in a prompt and orderly fashion. Doyle v. Moylan, 141 F.Supp. 95 (D.Mass.1956). By confining recovery to the limits of the liability insurance, an asset of the decedent not subject to distribution, the ......
  • Rosario v. Waterhouse
    • United States
    • U.S. District Court — District of Massachusetts
    • September 27, 2019
    ...force when municipal indemnification, rather than the assets of an estate, will support a final judgment. See, e.g., Doyle v. Moylan, 141 F. Supp. 95, 97 (D.Mass. 1956) (noting that the Massachusetts legislature truncated the statute of limitations to "facilitate the prompt settlement of es......
  • Dunlea v. Commonwealth
    • United States
    • Massachusetts Superior Court
    • October 30, 2000
    ...was filed." 5 See Department of Public Welfare v. Anderson, 377 Mass. 23 (1979); Stebbins v. Scott, 172 Mass. 356 (1899); Doyle v. Moylan, 141 F.Supp. 95 (1956). G.L.c. 197, 10 provides "If the supreme judicial court, upon a bill in equity filed by a creditor whose claim has not been prosec......

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