Porter v. Prince
| Decision Date | 17 May 1905 |
| Citation | 188 Mass. 80,74 N.E. 256 |
| Parties | PORTER v. PRINCE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas. P. Prince, pro se.
W. C. Cogswell, for defendant in error.
This is a writ of error to vacate a judgment rendered on default after service at the defendant's last and usual place of abode. In the assignment of errors it is alleged that the defendant in the original action was absent from the commonwealth at the time of service of the writ, and continued to be absent therefrom until a time after the entry of judgment, and no further notice was given as provided in Rev. Laws, c. 170. The contention of the defendant in error is that, where the defendant is a resident, and is only temporarily absent from the commonwealth, further notice need not be given. His argument is that the provisions of section 34 of Rev. Laws, c. 167, are to be read and construed in connection with those of section 31, and, so construed, section 34 applies only to nonresidents. But if the original act of which Rev. Laws, c. 167, § 34, is the present re-enactment, is looked at, it is plain that it is not to be read in connection with Rev. Laws, c. 167, § 31, and that it does include residents of the commonwealth temporarily absent from it. The original act of which Rev. Laws, c. 167, § 34, is now the re-enactment is Rev. St. c. 90, § 48, and originated in the report of the commissioners of the Revised Statutes. See chapter 90, § 43. The original act of which Rev. Laws, c. 167, § 31, is the re-enactment originated in Prov. Law 1700-01, c. 20, § 1; 1 Prov. Laws (State Ed.) p. 447. The provision of Rev. St. c. 90, § 48 (now Rev. Laws, c. 167, § 34), is: 'In all cases, when the defendant is out of the state at the time of the service of summons, he shall, in addition to the service thereof, as herein prescribed, be entitled to further notice of the suit, as provided in the ninety-second chapter' (now Rev. Laws, c. 170). The occasion of this section seems to have been to make certain of the point now urged by the defendant in error. In addition to this, there are two cases where a judgment has been held bad against a resident temporarily absent from the commonwealth. Johnson v. Thaxter, 12 Gray, 198; Smith v. Paige, 4 Allen, 94.
Judgment vacated.
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Bay State Wholesale Drug Co. v. Whitman
...It was not a matter as to which the return of the officer was decisive. This point is often raised on a writ of error. Porter v. Prince, 188 Mass. 80, 74 N. E. 256, and cases cited. A party is not obliged to wait until that stage. It may also be raised by plea. He may do it forthwith. Tilde......
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United Drug Co. v. Hayes
...that Coit was not in charge thereof as its agent. Stevens v. Ewer, 2 Metc. 74;Tilden v. Johnson, 6 Cush. 354, 359;Porter v. Prince, 188 Mass. 80, 74 N. E. 256. A defendant also, if a nonresident and not served personally with process within the commonwealth, is not obliged to resort to a wr......
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Nichols v. Vaughan
... ... binding upon all state courts. Eliot v. McCormick, ... 144 Mass. 10, 10 N.E. 705. See also Porter v ... Prince, 188 Mass. 80, 74 N.E. 256 ... But ... however that may be, the point here presented is one of ... ...
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Karrick v. Trask
...notice of the pendency of the action having been given under R. L. c. 170, the judgment was reversible on a writ of error. Porter v. Prince, 188 Mass. 80, 74 N. E. 256;Langdon v. Doud, 6 Allen, 423, 83 Am. Dec. 641. See Nichols v. Vaughan, 217 Mass. 548, 551, 105 N. E. 376;Joyce v. Thompson......