Hutchins v. Del Rosso, 6498
| Decision Date | 30 July 1976 |
| Docket Number | No. 6498,6498 |
| Citation | 365 A.2d 127,116 N.H. 421 |
| Parties | Lyford HUTCHINS v. Eugenia R. DEL ROSSO. |
| Court | New Hampshire Supreme Court |
Lyford Hutchins, by brief and orally, pro se.
Phillips & Grillo, Haverhill, Mass., and Ira H. Shinberg, Haverhill, Mass., Herbert P. Phillips, Haverhill, Mass., orally, for defendant.
The main issue is whether personal jurisdiction was obtained over Eugenia R. Del Rosso so that her personal assets will by subject to execution to satisfy the money judgment of $4,897.78 rendered by the court.
Plaintiff instituted a possessory action under RSA ch. 540 returnable in the Ossipee District Court at the September 1966 term to recover possession of certain premises in Effingham known as the 'Drake Mill Lot.' On a plea of title by the defendant, Angelo Del Rosso, the action was transferred to the superior court. Angelo died April 20, 1967, and his widow, Eugenia, a resident of Haverhill, Massachusetts, the sole devisee under her husband's will, was appointed executrix thereof in that Commonwealth on June 16, 1967.
On or about February 1, 1968, plaintiff filed a 'Motion to Join Administrator and for Confession of Judgment.' One of its prayers was the following: This motion was granted by Bownes, J., on June 18, 1968.
However, on April 19, 1968, plaintiff filed another motion entitled 'Suggestion of Death and Motion to Join Executrix and Devisee.' It contained the following prayer: Plaintiff also sought an order of notice in accordance with the prayer to be served on Eugenia by certified mail, return receipt, at 12 Maple Avenue, Haverhill, Massachusetts. This motion was granted by Flynn, J., on May 8, 1968. Such an order of notice was issued on May 9, 1968, and a receipt of notice by certified mail was signed by Eugenia on May 17, 1968. An appearance card dated the same day was filed by Thomas S. Allison, Jr., Esq., as counsel for 'Eugena (sic) R. Del Rosso, Executrix of the Estate of Angelo Del Rosso.'
On August 23, 1968, plaintiff filed a motion seeking the issuance of a writ of possession and the assessment of damages. The writ of possession was granted by Dunfey, J., on September 11, 1968. There was evidence that, at the request of the presiding justice, the clerk telephoned Attorney Allison to inform him of a hearing on the next day, September 12, 1968, on the assessment of damages. Neither he nor the defendant attended the hearing. After receiving testimony, the court granted damages under RSA 540:23 in the sum of $4,897.18. They included $3,850 for loss of rents from December 1, 1966 to September 1, 1968; $150 for purging the soil of pollution; and $380 for removal of the 'Del Rosso Camp.' Judgment was entered October, 1, 1968. Plaintiff sought a certification of the records which was issued by the clerk of court under the caption 'Lyford Hutchins v. Eugenia R. Del Rosso Individually and as Executrix of Estate of Angelo Del Rosso.' Suits were then instituted against Eugenia in the probate and superior courts of Massachusetts to recover these damages.
On December 31, 1969, defendant Eugenia filed a petition entitled 'Petition for New Trial' as executrix and as 'an individual but only for the purpose of presenting the petition and not for the purpose of submitting to the jurisdiction of the court generally.' The first prayer sought to have the judgment against Eugenia as an individual vacated because she has never submitted herself to the jurisdiction of the court and no in rem proceeding has given the court jurisdiction. The Court Dunfey, J., found and correctly ruled that the essence of plaintiff's February 1, 1968 motion granted by Bownes, J., on June 18, 1968, was to order the legal representative of the estate of Angelo to assume the defense of the action because of his decease. There was no attachment of Eugenia's interest in New Hampshire property, or any issuance of an order of notice and no service of process on her by mail or otherwise. RSA 510:4, :5, :8. We hold that the trial court properly found and ruled that no in personam jurisdiction was obtained over Eugenia under this motion.
The trial court also found and ruled that plaintiff's motion filed April 19, 1968, entitled 'Suggestion of Death and Motion to Join Executrix and Devisee' was 'for all intents and purposes directed at Mrs. Del Rosso in connection with any interest she had in defendant's estate as executrix of same or devisee and/or beneficiary.' We hold that the language could be so interpreted. The court overlooked, however, the record that this motion had been granted by Flynn, J., on May 8, 1968, and that an order of notice had been issued in accordance with the prayer and had been mailed to and received by Eugenia on May 17, 1968. For reasons which follow, the interpretation placed on the motion by the court...
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