Kimball v. Sweet
| Decision Date | 27 February 1897 |
| Parties | KIMBALL et al. v. SWEET. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Freedom
Hutchinson and William H. Preble, for appellant.
Sherman L. Whipple and Hollis R. Bailey, for appellees.
The defendant appeared specially in the superior court, and moved to dismiss the action "for want of proper service on the defendant." This motion was overruled, and the defendant appealed. See Maley v. Moshier, 160 Mass. 415, 36 N.E. 64. The defendant afterwards was defaulted. The defendant is described in the writ as "of Providence, in the county of Providence and state of Rhode Island." The return of service by the officer is as follows It seems that generally the decision of a justice of the superior court upon such a motion is final, and that there is no appeal to this court. Pub.St. c. 153, § 8; Bassett v. Howorth, 104 Mass. 224; Parker v. Kenyon, 112 Mass. 264; Houghton v. Ware, 113 Mass. 49; Kennedy v Langdon, 123 Mass. 193; Bank v. Johnson, 155 Mass. 43, 29 N.E. 59; Guild v. Bonnemort, 156 Mass 522, 31 N.E. 645; Heavor v. Page, 161 Mass. 109, 36 N.E. 750. If W.H. Preble was not in fact the attorney of the defendant to receive service of process according to our statutes, and if judgment should be entered against the defendant, as the defendant is not an inhabitant of the commonwealth, there is a remedy by writ of error, or, if suit is brought on the judgment, by plea and proof. See Pub.St. c. 161, § 31; Id. c. 164, § 4; Eliot v. McCormick, 144 Mass. 10, 10 N.E. 705; Needham v. Thayer, 147 Mass. 536, 18 N.E. 429. In the present case the question goes to the jurisdiction of the court over the defendant. The service of the writ does not purport to be on any person known to the officer to be the attorney of the defendant, as authorized by Pub.St. c. 161, § 31, or on the attorney of the defendant in any action brought by him against the present plaintiff, as authorized by Id. c. 164, § 4. Without considering whether service in accordance with the provisions of either of these sections would be sufficient under the recent decisions of this court which are cited above, and which follow the decisions of the supreme court of the United States upon the effect of the fourteenth article of the amendments of the...
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