United Drug Co. v. Hayes

• Decision Date: 08 July 1921
• Citation: 239 Mass. 334,132 N.E. 56
• Parties: UNITED DRUG CO. v. CORDLEY & HAYES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 334

132 N.E. 56

UNITED DRUG CO.

v.CORDLEY & HAYES.

Supreme Judicial Court of Massachusetts, Suffolk.

July 8, 1921.

Report from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by the United Drug Company against Cordley & Hayes, a foreign corporation, for breach of contract reported from the superior court after allowance of a motion to dismiss. Order affirmed.

A motion to dismiss, on the ground that no sufficient service of the writ had been made, had been previously denied, on the ground that the court was authorized, under Rev. Laws, c. 170, § 6, to order the action continued until notice was given in such manner as might be ordered. The case subsequently came on for hearing on a plea in abatement, upon which hearing plaintiff's counsel stated that plaintiff was unable to make any further service, and desired no further continuance or delay for the purpose of attempting to make such service, and stated that he could show that at the time of the service defendant had a usual place of business in Boston, and that the person upon whom service was made was in fact the agent in charge of its place of business. Defendant thereupon waived the plea in abatement, and filed another motion to dismiss, which was allowed. Defendant had filed an appeal from the order denying the first motion, and the report states that ‘at the request of both parties I also report, if I have the right to so do, said order of Mr. Justice Jenney and the appeal therefrom.’Gaston, Snow, Saltonstall & Hunt and Rupert L. Mapplebeck, all of Boston, for plaintiff.

Choate, Hall & Stewart and Archibald MacLeish, all of Boston, for defendant.

BRALEY, J.

The order on the first motion to dismiss was interlocutory, and whether the question should be reported to this court before further proceedings were taken was discretionary. R. L. c. 173, § 105, as amended; G. L. c. 231, § 111. And there being no statement in the record that the judge had reserved the case for report, the order he made cannot be revised under the report of the judge who subsequently heard and decided the second motion. Walters v Jackson & Newton Co., 231 Mass. 247, 120 N. E. 688. The defendant's appeal also cannot be considered, because there has been no final judgment in the trial court. Ames v. Winsor, 19 Pick. 247;Weil v. Boston Elevated Railway, 216 Mass. 545, 546, 104 N. E. 343. The action is in contract, and from the recitals in the record, which for the purposes of our decision must be taken as true, it appears that the plaintiff is a corporation chartered under the laws of this commonwealth, while the defendant is described as a corporation organized and existing under the law of the state of New York, ‘and having a usual place of business in Boston within our county of Suffolk.’ Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, 113 N. E. 413.

[4][5] The officer's return in so far as material reads as follows:

‘By virtue of this writ I this day attached a chip as the property of the within named defendant corporation Cordley & Hayes, and afterwards on the same day summoned it to appear and answer in court as within directed by delivering in hand to C. S. Coit as its agent a summons, together with an attested copy of this writ.’

The construction of this return is that the officer knew the fact to be as averred, that Coit was the defendant's agent. Joyce v. Thompson, 230 Mass. 254, 255, 119 N. E. 777. The defendant appearing specially filed a motion to dismiss because it did not appear that Coit ‘was at the time of such service the agent or other officer of the said defendant in charge of its business,’ and also filed a plea in abatement. The service plainly was insufficient, and the question could be raised by a motion to dismiss. Lowrie v. Castle, 198 Mass. 82, 87, 83 N. E. 1118; R. L. c. 167, § 36; St. 1907, c. 332; St. 1913, c. 257. But even if the ruling that R. L. c. 170, § 6, was applicable and authorized the court to continue the action until notice was given in such form as might be ordered, is not reviewable, it was the law of the case at the hearing on the plea in abatement two years later before another judge of the trial court. Boyd v. Taylor, 207 Mass. 335, 93 N. E. 589;McManus v. Thing, 208 Mass. 55, 94 N. E. 293.

The attention of the judge having been called to the memorandum and decision of his former associate, and the defendant having waived his plea, counsel ‘for the plaintiff stated that at this time the plaintiff was unable to make any further personal service on the defendant,’ and that he ‘desired no further continuance or delay for the purpose of attempting to make such service,’ but would show that at the time of the service of the writ ‘the defendant corporation had a usual place of business in Boston and that C. S. Coit, upon whom service had been made as shown by the return, was in fact the agent in charge of the defendant's place of business.’ The case therefore was on the same footing as when the question of jurisdiction was first mooted, except that the plaintiff who apparently never had obtained process for further service renounced all rights under the order denying the first motion, and took the position that he was remediless under R. L. c. 170, § 6, as further service could not be made. The defendant thereupon filed a second motion to dismiss based on the same grounds as the first motion. This motion was properly before the court. Ames v. Winsor, 19 Pick. 247;Santom v. Ballard, 133 Mass. 464. It resulted from the plaintiff's unequivocal action, voluntarily taken, that unless the officer's return could be amended by striking out the word ‘as' and by inserting the words ‘in charge of its business' so that the return would read ‘by delivering in hand to C. S. Coit as its agent in charge of its business a summons together with an attested copy of this writ’ the action would have to be dismissed. R. L. c. 167, § 36; St. 1907, c. 332, § 1; St. 1913, c. 257, now G. L. c. 223, § 38; Lowrie v. Castle, 198 Mass. 82, 87, 83 N. E. 1118;Joyce v. Thompson, 230 Mass. 254, 255, 119 N. E. 777.

[8] The incomplete return undoubtedly could have been amended with the permission of the court by the officer certifying this essential and omitted fact if it were known to him to be true. Tilden v. Johnson, 6 Cush. 354;Park v. Johnston, 7 Cush. 265;Shepherd v. Jackson, 16 Gray, 599, 600;Smith v. Randall, 1 Allen, 456;Lord v. Skinner, 9 Allen, 376;Safford v. Clark, 105 Mass. 389, 390. If this had appeared originally the defendant could show only by plea in abatement, or by writ or error if judgment had been obtained by default, that it had no place of business in this commonwealth, or if it had a place of business, 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 writ of error, but if sued upon a domestic judgment may impeach it by plea and proof. Needham v. Thayer, 147 Mass. 536, 18 N. E. 429. So a writ of review ‘is a proper remedy to correct an error in a judgment, when the statute has been complied with by causing the writ to be properly served, but through some mistake or accident the defendant has not had notice of the action.’ Johnson v. Thaxter, 12 Gray, 198, 200. A motion to dismiss, however, lies solely on the ground that upon the face of the writ and the officer's return there has been no legal service. Brown v. Webber, 6 Cush. 560, 569;Haynes v. Saunders, 11 Cush. 537;Oliver Ditson Co. v. Testa, 216 Mass. 123, 125, 103 N. E. 381.

The plaintiff accordingly contends that extrinsic evidence can be introduced on which the judge would be warranted in finding the omitted fact, and if he so found, the motion to dismiss would have to be denied, for the court had jurisdiction to hear and determine the case on the merits. The judge rightly declined to admit the evidence. It was said in Wellington v. Gale, 13 Mass. 483, 489, a writ of entry, where the question of an incomplete return was discussed:

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