Thompson v. Cowell

• Decision Date: 28 February 1889
• Citation: Thompson v. Cowell, 148 Mass. 552, 20 N. E. 170 (Mass. 1889)
• Parties: THOMPSON v. COWELL.
• Court: Supreme Judicial Court of Massachusetts

148 Mass. 552

20 N.E. 170

THOMPSON v. COWELL.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1889

COUNSEL

F.D. Ely, for petitioner.

C.J. Randall, for respondent.

OPINION

MORTON, C.J.

This is a petition under Pub.St. c. 176, inserted in a writ of original summons. The writ and petition were duly served upon the respondent by giving him in hand an attested copy, he being at the time of the service commorant of Wrentham, in this commonwealth. The court thus acquired jurisdiction of his person, and can proceed with the suit and enter a personal judgment against him. Roberts v. Knights, 7 Allen, 449; Peabody v. Hamilton, 106 Mass. 217.

The respondent relies upon the case of Macomber v. Jaffray, 4 Gray, 82. But in that case the respondents all were out of the commonwealth and no personal service was or could be made upon them. The court declined to issue an order of notice to them, because they were not personally subject to the jurisdiction of the court. The suggestion in the opinion that if the petition was entertained "it would deprive the respondent of the election to sue in the circuit court of the United States," does not seem to be well founded, as the court may order the respondent to bring a suit to try the title in any court of competent jurisdiction, or may give the respondent his election to bring it in any such court.

Plea overruled.