F.H. Hill Co. v. Doe

• Decision Date: 30 March 1934
• Parties: F. H. HILL CO., Inc., v. DOE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 187

189 N.E. 583

F. H. HILL CO., Inc.,

v.DOE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1934.

Report from Superior Court, Suffolk County; J. Walsh, Judge.

Action by the F. H. Hill Company, Inc., against John Doe, alias Joseph Wood. The trial judge overruled a portion of the answer and reported the case.

Order of the trial judge overruling defendant's plea affirmed, and defendant's exception to the order overruled.

H. C. Thompson, of Boston, for plaintiff.

F. G. Bauer and B. Berenson, both of Boston, for defendant.

PIERCE, Justice.

This is an action of contract to recover for an undertaker's bill which had been assigned to the plaintiff. It is before the court on report from the Superior Court. The sole question here to be determined is what effect is to be given to a former judgment obtained by the present plaintiff against the present defendant.

The facts which are admitted and set out in the record are as follows: By writ dated November 8, 1932, the present plaintiff brought an action in the Municipal Court of the City of Boston against Joseph S. Woods, upon the same cause of action as that contained in the declaration in the present action. The defendant in the present action is the same person intended to be sued under the name of Joseph S. Woods in said action in the Municipal Court of the City of Boston. Service was made by leaving a summons of the writ at No. 104 Russett Road, in the West Roxbury District of the City of Boston, which is one-half of a double house. The defendant lives in the other half, numbered 102. The defendant was defaulted and judgment entered for the plaintiff on December 2, 1932. The judgment is still outstanding on the records of said court. Execution issued on said judgment on December 3, 1932. The plaintiff therein cited the present defendant in for examination before the Municipal Court of the West Roxbury District of the City of Boston under G. L. (Ter. Ed.) c. 224, and on service duly made on him in hand, the present defendant appeared and filed a plea to the jurisdiction as follows: ‘And now comes Joseph S. Wood, the person served with process in the above-entitled proceeding, hereinafter referred to as the respondent, and appearing for the purpose of making this plea and no other purpose, says: That his name is not Joseph S. Woods as alleged in the citation, but Joseph S. Wood and that he has at all times been known by the name of Joseph S. Wood and never by any other name; that the present proceeding purports to be based on a judgment rendered by the Municipal Court of the City of Boston in an action brought by the present judgment creditor against one Joseph S. Woods and numbered 307048 on the current civil docket of said Court, in which action it appears by the officer's return on the original writ that the only service of said writ was by leaving a summons of the sume at the last and usual place of abode of Joseph S. Woods at 104 Russett Road in the City of Boston, West Roxbury District; that the present respondent never lived at 104 Russett Road, so that the same could not be and never was his last and usual place of abode, and said judgment appears on its face to be against some other person and not against this respondent, and by reason of the fact that no service was made on this respondent said judgment is invalid as a basis for the present proceedings against this respondent, and that to hold this respondent for the paymentof said judgment or in the present proceeding is a violation of the 14th amendment to the Constitution of the United States. Wherefore, he prays that this proceeding be dismissed.’ The plea was sustained by the court on February 20, 1933. Thereupon the plaintiff brought the present action...