Sampson v. Conlon
| Decision Date | 30 January 1956 |
| Citation | 100 N.H. 70,119 A.2d 707 |
| Parties | Lillian M. SAMPSON, Trustee, v. Arthur J. CONLON. |
| Court | New Hampshire Supreme Court |
George H. Keough, Berlin, for plaintiff.
Hamblett, Moran & Hamblett, Nashua, for defendant.
The first issue raised by the defendant's motion relates principally to RSA 510:8 which provides in part: 'When the defendant is not an inhabitant of the state, and no mode of serving the writ is prescribed, or service thereof cannot be made in the mode prescribed, the action may be entered in court and such notice ordered as the case requires'. Section 4 of the same chapter provides: 'If the defendant is not an inhabitant of the state, and the writ is not served on him in person within the state, but his goods or estate are attached, an attested copy of the writ and of the return of the attachment may be given to him, or left at his abode outside the state, or may be left with the agent authorized to appear for him, or with his tenant on or near the land attached.'
It is the defendant's contention that section 4 prescribes four 'mode[s] of serving the writ'; that it does not appear in this case that 'service thereof cannot be made in the mode prescribed'; and that consequently, no authority existed to permit the entry of the action in court under section 8 or the issuing of an order of notice by the court.
It is not a requirement to the entry of an action under section 8 that each of the modes of service provided by section 4 be first exhausted. The plaintiff in this action was no more required to furnish evidence that a diligent search for the defendant had been made in the state where he was alleged to have last resided, as suggested by the defendant, than to show the impossibility of serving upon an 'agent authorized to appear for' the defendant or upon 'his tenant on or near the land attached.' While the writ recites the 'last known residence' of the defendant to have been in Massachusetts, it describes him as being 'of parts unknown', thereby indicating that service could not be made upon him outside the state, either in hand or by leaving 'at his abode'. In addition, the sheriff who attached the defendant's real estate in this state made a return of non est inventus. It has long been a settled construction of section 8 that this is sufficient evidence to permit the entry of an action and the issuance of an order of notice by the court. Clark v. Bradstreet, 99 N.H. 55, 57, 104 A.2d 739; Therrien v. Scammon, 87 N.H. 214, 215, 176 A. 116; Burney v. Hodgdon, 66 N.H. 338, 339, 29 A. 493.
The order of notice directed the plaintiff to notify...
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