Gahm v. Wallace

• Decision Date: 18 May 1910
• Parties: GAHM et al. v. WALLACE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 39

91 N.E. 1002

GAHM et al. v. WALLACE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1910

COUNSEL

Wm. D Turner and George Hoague, for appellants.

Whipple Sears & Ogden, for appellees.

OPINION

KNOWLTON C.J.

The plaintiff, having a substantial claim against the defendant Wallace upon certain promissory notes, brought this suit against him in the superior court, and attached generally his interest in any real estate in the county of Suffolk, and especially a certain parcel of land with buildings upon it on Westland avenue in Boston, which stands in the name of the defendant Watson. The original writ ran against Wallace alone. As Wallace was not an inhabitant of the commonwealth and had no last and usual place of abode tenant or agent therein, no service was made on him. Upon the plaintiff's motion an order was issued for notice to be served personally on him, 14 days at least before the first Monday of January, 1909, that he might appear on that day and show cause why judgment should not be entered against him in the action. An affidavit was subsequently filed, saying that on the 12th day of December, 1908, he was served with an attested copy of this order of notice at Rochester, in the state of New Hampshire, by a deputy sheriff appointed for the county of Strafford in that state. He having failed to enter an appearance within the time prescribed by Rev. Laws, c. 170, § 7, a default was entered, in accordance with the terms of this section. Under this section and section 6, the plaintiff then became entitled to a judgment which would be good against the property attached, under the provisions of section 1 of this chapter, if an effectual attachment was made. The defendant had lost his right to appear and be heard in the case, and could afterwards appear only by leave of the court on the removal of the default. Any judgment that the court might render, founded on the default, and the facts proved by the plaintiff, would not be binding upon the defendant to make him liable directly, inasmuch as there had been no service that gave jurisdiction to adjudicate against him personally. Eliot v. McCormick, 144 Mass. 10, 10 N.E. 705, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. But to raise questions of this kind in reference to a judgment running only against his property, unless the default was taken off, he would be obliged to wait until the judgment was rendered and then to proceed by a writ of error, a writ of review, or otherwise. Before the default he could have appeared specially, simply for the purpose of objecting to the jurisdiction, without thereby submitting to the jurisdiction of the court.

On February 16, 1909, he appeared specially, representing that he did it only for this purpose, and moved that the default be removed. Rule 43 of the superior court is as follows: 'When a default is entered in an action, it shall not be stricken off after the day upon which it is entered, except upon notice to the adverse party, and upon an affidavit of merits in the defense, with a statement of its nature, and proof to the satisfaction of the court that a defense is in good faith intended.' This rule was plainly intended to prevent the removal of a default to enable a defendant to interpose dilatory motions, or to do anything else except to defend the case upon its merits. Under this rule we are of opinion that a defendant cannot have a default taken off merely for the purpose of raising a question as to the jurisdiction of the court. It seems to have been intended to require him to waive all questions of jurisdiction, so far as it is possible for him to waive them, and to come directly to the merits of his defense as a condition of having the default removed. The affidavit must not only show merits in the defense, but must contain a statement of its nature; and the court must be satisfied that a defense is in good faith intended. These provisions indicate the presentation of something different from a mere denial of the jurisdiction of the court.

On February 23d the defendant filed an affidavit in compliance with this rule. He set up that he had a good defense to the action, in that the same plaintiffs had brought a suit against him in New Hampshire upon the same notes, and another suit in New York upon them, and that certain of the notes were without consideration and void, and in the nature of penalties. In stating his defense in the affidavit, he did not refer to want of jurisdiction, although he had stated in an early part of the affidavit the facts relative to the service, and had said, as an excuse for his failure to appear seasoably, that he had been told that the court had no jurisdiction.

On February 27th, upon the motion and affidavit, the court made an order, after a hearing, reciting a waiver by the plaintiffs of their claim for a trial by jury, and allowing them to amend their writ on or before March 1st, and allowing the defendant to file his answer on or before March 6th, and setting down and assigning the action for hearing in a session without a jury, March 11th. Thereupon the plaintiffs amended their declaration, upon a motion allowed March 1st, striking out two counts and changing another count. The defendant then filed his answer in two papers, numbered 13 and 14,...