Joyce v. Thompson
| Decision Date | 25 May 1918 |
| Parties | JOYCE v. THOMPSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Error to Superior Court, Essex County.
Action by Charles H. R. Thompson against Thomas F. Joyce. To review judgment for plaintiff, defendant petitions for writ of error, which was issued by the Supreme Judicial Court. Judgment affirmed.
See, also, 118 N. E. 184.
Cregg & Cregg, of Lawrence, for plaintiff in error.
Samuel H. Hollis, of Lynn, for defendant in error.
By the thirty-second common-law rule the plaintiff before taking out a writ of error is required to file the assignment of errors in the clerk's office, a copy of which shall be inserted in the scire facias to be served on the defendant, and to which he is to plead within ten days after the return day unless the court shall by special order restrict or enlarge the time. While the record fails to show that a writ of scire facias issued, and the defendant's plea was filed nearly a year after the entry of the petition, without any order of the court or consent of counsel for the plaintiff, the voluntary appearance by the defendant without objection in sufficient to confer jurisdiction. We find no assignment of errors of fact, and the defendant by his plea in nullo est erratum admits that while the assignment of errors of law are true on the record, they are insufficient to reverse the judgment. Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623. The question thus presented is one of law within the exclusive jurisdiction of the full court, and not of the court when held by a single justice. Conto v. Silvia, 170 Mass. 152, 49 N. E. 86. The eight assignments are in legal intendment only different statements of the ground for reversal, that the service on the plaintiff of the writ in the original action was insufficient to give the trial court jurisdiction. Pub. St. c. 161, § 31, in force when the service was made, provide that:
‘If the summons in not served personally on the defendant, the original or a copy, as the case may be, shall be left at his last and usual place of abode, if he has any within the commonwealth known to the officer; and if he has none, it shall be left with his tenant, agent, or attorney, if he has any within the commonwealth. * * *’
The form of return is left to the officer serving process. The only requirement is, that to be valid it must show substantial compliance with the statute. The writ described the defendant as a resident of Lynn, and...
To continue reading
Request your trial
-
Bay State Wholesale Drug Co. v. Whitman
...place of abode’ of the defendant in Hamilton, it was conclusive between the parties. Stewart v. Griswold, 134 Mass. 391;Joyce v. Thompson, 230 Mass. 254, 119 N. E. 777. See, also, McDonald v. Mabee, 243 U. S. 90, 92, 37 S. Ct. 343, 61 L. Ed. 608, L. R. A. 1917F, 458. If the defendant was a ......
-
Karpowicz v. Manasas
...a summons at the defendant's last and usual place of abode, 155 Vernon Street, Worcester. Jones v. Walker, 15 Gray, 353;Joyce v. Thompson, 230 Mass. 254, 119 N. E. 777. Edward J. Manasas testified that his home was at that number. No evidence was offered to prove that a man by the name of E......
-
United Drug Co. v. Hayes
...construction of this return is that the officer knew the fact to be as averred, that Coit was the defendant's agent. Joyce v. Thompson, 230 Mass. 254, 255, 119 N. E. 777. The defendant appearing specially filed a motion to dismiss because it did not appear that Coit ‘was at the time of such......
-
Atlas Elevator Co., Inc. v. Stasinos
...present case did not state that the last and usual place of abode was known to him, that knowledge may be implied. Joyce v. Thompson, 230 Mass. 254, 255, 119 N.E. 777 (1918). We see nothing inconsistent with our conclusion in the recent pre-judgment remedy due process cases, such as Sniadac......