Hall v. Staples

• Decision Date: 16 June 1896
• Citation: 44 N.E. 351,166 Mass. 399
• Parties: HALL v. STAPLES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 399

44 N.E. 351

HALL v. STAPLES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 16, 1896

COUNSEL

F.L. Hayes, for petitioner.

Joseph F. Wiggin, City Sol., for defendants.

OPINION

FIELD C.J.

The first question in the case is whether the petitioner can contradict the record of the proceedings of the respondents, so far as it recites the service of notice on him. It is generally true that the record of a domestic judgment cannot be contradicted by oral evidence, but this is subject to some exceptions. A domestic judgment in an action at common law against an inhabitant of the commonwealth which recites that the defendant was duly served with process or duly appeared by attorney, can be contradicted with respect to the service or appearance on a writ of error, and the fact can be tried and determined. Bodurtha v. Goodrich, 3 Gray, 508; Finneran v. Leonard, 7 Allen, 54; Hendrick v Whittemore, 105 Mass. 23; Gilman v. Gilman, 126 Mass. 26; McCormick v. Fiske, 138 Mass. 379; Needham v. Thayer, 147 Mass. 536, 18 N.E. 429; Young v. Watson, 155 Mass. 77, 28 N.E. 1135. See Packard v. Matthews, 9 Gray, 311; Eliot v McCormick, 141 Mass. 194, 6 N.E. 375. The court rendering the judgment has no judicial knowledge that the return of the officer that he has served the process on the defendant in the manner stated is true, and without legal service of process, or an appearance in the cause, the court acquires no jurisdiction over the person of the defendant; and it is for this reason that the truth of the return can be contradicted in a process brought directly to impeach the judgment. In actions at common law, in this commonwealth, this process may be either a writ of review, or a writ of error. See Brewer v. Holmes, 1 Metc. (Mass.) 288; James v. Townsend, 104 Mass. 367; Pub.St. c. 187, §§ 3, 22. No writ of error lies to such a tribunal as a board of health, and the only method of correcting errors in its proceedings, in matters over which it has jurisdiction, is by a writ of certiorari. While the record of such a board generally cannot be contradicted, any more than the record of a court at common law, yet there are exceptions in both cases; and we think, in the present case, that the recital in the record of the service of process can be shown to be false by evidence, and that on the facts found it must be taken that the notice was not served on the petitioner.

The single justice before whom the petitioner was tried found as follows: "I further find that the petitioner had knowledge of the proposed change in the condition of the brook and the adjacent premises not very long after the order was made; precisely how soon, the evidence did not enable me to determine, but certainly while the work was going on, for he was there, and saw the workmen engaged upon it, early in the autumn of 1891. From the circumstances of the case, and from his general intelligence and knowledge in regard to matters of this kind, and from his testimony, I find that he then believed that the work was being conducted by the public authorities, and that an assessment of a part or the whole of the cost of the work upon the landowners was probable. He did not inform the respondents, or anybody representing the public or the city of Malden, of his failure to receive notice, until February, 1893,--a long time after the work had been completed and the assessments had been made. He was all the time a resident of the city of Boston, and was not absent from the commonwealth." The petition was filed on October 16, 1894, and the assessments were made on January 16, 1892. The board of health acted under the provisions of Pub.St. c. 80, § 28 et seq. The petitioner, in his brief, does not ask that the proceedings of the respondents be quashed in any respect, except as to the assessment upon him. If the question were of quashing the whole proceedings of the board of health in abating the nuisance on the petitioner's land, it might well be held, on the facts found, that the petitioner had been guilty of laches, and that a writ of certiorari should be refused on the ground that justice does not require that the whole proceedings be quashed. When the petition was brought the work had been completed at large expense, and the petitioner had stood by and seen the work done without making any objection. Noyes v. City Council of Springfield, 116 Mass. 87; Stone v. City of Boston, 2 Metc. (Mass.) 220.

But the assessment stands upon a somewhat different ground. Pub.St c. 80, §§ 28, 30, 32, have been amended by St.1887, c. 338. Before this amendment there was no appeal from the decision of the board of health upon the necessity and mode of abating the nuisance; and there was no appeal from the assessment and apportionment of the expenses of the abatement, but this assessment was included in the city or town taxes, and was liable to abatement as other taxes are. There was an appeal from the estimate and award of damages by the board of health, and this remains as before. Pub.St. c. 80, § 35. By Pub.St. c. 11, § 74, application for an abatement of a tax must be made within six months after the date of the tax bill. St.1887, c. 338, gave an appeal to the superior court from the decision of the board that a nuisance existed; but the party appealing must give notice of his intention to appeal within 24 hours...