Eliot v. McCormick

• Decision Date: 25 February 1886
• Citation: 6 N.E. 375,141 Mass. 194
• Parties: ELIOT v. McCORMICK and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 194

6 N.E. 375

ELIOT v. McCORMICK and others.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1886

The assignment of errors was as follows:

"The officer's return on the writ in said action was in the following words: 'Suffolk, ss.: BOSTON, October 21 1863. By virtue hereof, I, this day, at thirty minutes past eleven o'clock A.M., attached all the real estate belonging to the within-named John Eliot, in the county of Suffolk, and all the right, title, and interest he has in and to any real estate in said county. The same day I deposited in the office of the clerk of the supreme judicial court an attested copy of this writ, (save the declaration,) with so much of my return indorsed thereon as relates to said attachment. The within-named defendants not being inhabitants of this state, nor having any residences therein, and not finding them in my precinct, nor any agent, tenant, or attorney, of theirs known to me as such I could make no further service of this writ.' (1) It appears by the record that no personal service of the writ was made upon said Eliot, and that no summons was left at his last and usual place of abode in the commonwealth, and it does not appear by the officer's return, or otherwise, that said Eliot had no last and usual place of abode within the commonwealth. (2) It appears by the record that no personal service was made upon said Eliot, and that no summons was left at his last and usual place of abode in the commonwealth; and the plaintiff in error avers, as matter of fact, that at the time of the service of said writ he had a last and usual place of abode in said commonwealth, namely, house numbered 37 Common street, in said Boston. (3) Said Eliot had no knowledge or notice of the pendency of said action, and said judgment was entered against him by default, without an opportunity to defend upon the merits. (4) That no valid and effectual attachment of the property of said Eliot was made upon the writ in said action."

The defendants in error demurred, assigning the following causes of demurrer, viz:

"For that the plaintiff in error, in his aforesaid assignment of errors, hath assigned a certain error in law, to-wit, a defect in the officer's return of the service of the original writ in said action, along with three certain errors in fact, to-wit: First, that at the time of the service of said writ the said plaintiff in error had a last and usual place of abode in the commonwealth of Massachusetts; second, that the said plaintiff in error had no knowledge or notice of the pendency of said original action, and said judgment was entered against him by default, without an opportunity to defend upon the merits; and, third, that no valid and effectual attachment of the property of said plaintiff in error was made upon the writ in said action. Also for that the said plaintiff in error, in his aforesaid assignment of errors, hath, at the same time, and together, assigned as error the aforesaid three certain errors in fact. Also for that the said assignment of errors is in other respects uncertain, informal, and insufficient in

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