Rand v. Hanson

• Decision Date: 25 June 1891
• Citation: 154 Mass. 87,28 N.E. 6
• Parties: RAND v. HANSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 87

28 N.E. 6

RAND v. HANSON.

Supreme Judicial Court of Massachusetts, Essex.

June 25, 1891

Report from superior court, Essex county; CHARLES P THOMPSON, Judge.

Where in action in New Hampshire against Massachusetts resident order was made directing service by publication, or by giving defendant copy, or leaving it at her last and usual place of abode, but not directing place it was to be served, did not warrant inference that it was served in New Hampshire.

A writ was issued from the supreme court of New Hampshire at the suit of William Rand against Sarah E. Hanson while she was a resident of Massachusetts. She was not and had not been in New Hampshire at any time between the date of the writ and the last possible day of service thereof, and had no property there except an unassigned right of dower. An attachment was made of all the lands in New Hampshire in which she had "any right, interest, or estate." There was no personal service of the attachment on her. On return-day the court ordered that notice of the action be given by publication, or by personal service, or by leaving the notice at her last and usual place of abode, the order reciting that she resided without the state. The return of the officer showed that he gave the notice to defendant, but did not state the place of service, which was agreed to have been "either in New Hampshire or Massachusetts." Judgment was rendered against her, and on that judgment this action was brought against her administratrix, Hattie F Hanson. The foregoing facts were agreed upon to be submitted to the court for a judgment from which it might draw any proper inference of fact. Plaintiff had judgment below, and the case was reported to the supreme court.

COUNSEL

I.E. Pearl, for plaintiff.

W.H. Moody, for defendant.

OPINION

KNOWLTON J.

The judgment rendered against the defendant's intestate by the supreme court of New Hampshire was void for want of jurisdiction, unless a proper process was served on her in that state. Eliot v. McCormick, 144 Mass. 10, 10 N.E. 705; Needham v. Thayer, 147 Mass. 536, 18 N.E. 429; Pennoyer v. Neff, 95 U.S. 714; Eaton v. Badger, 33 N.H. 228. There is a presumption in favor of the regularity of the proceedings of any court of general jurisdiction. Bissell v. Wheelock, 11 Cush. 277; Stockwell v. McCracken, 109 Mass. 84. But it is always a good defense against a suit brought on a judgment recovered in another state to show that the defendant was not a resident of that state and that no proper service was made on him there. The presumption in favor of the validity of a judgment does not extend to a case where it appears from the record that the defendant was a non-resident, and it does not appear that service of process was made upon him within the state. Downer v. Shaw, 22 N.H. 277; Morse v. Presby, 25 N.H. 299. In Galpin v. Page, 18 Wall. 350, it is said that "where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction, upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the jurisdiction of the court. The facts essential to the exercise of the special jurisdiction must appear in such cases upon the record." The facts agreed by the parties, and the facts disclosed by the record itself, show that the court had no jurisdiction of the defendant's intestate when the order of notice was issued at the February term in 1878. The record showing that there was no jurisdiction without a service of this order upon her in New Hampshire, the question arises whether the agreed statement shows that the order was served there, or whether there is any evidence in the case which, under the stipulation in the agreement that the court may draw inferences of fact, would warrant the superior court in making a finding to that effect. Unless this question can be answered in the affirmative, the judgment must be for the defendant.

The order of notice directed a service either by publication, or by giving a copy in hand to the original defendant, or by leaving it at her last and usual place of abode. It did not require or contemplate a personal service in the state of New Hampshire, but treated a service by leaving a copy at her place of abode in Massachusetts or by giving it in hand to her there, as of equal effect with a personal service within the jurisdiction of the court. The fact that the order was...