Pitman v. Tremont Nail Co. , 84 Mass. 531 ( 1861 )

Bigelow, C. J.

We are of opinion that the police court oi the city of Fall River could not properly take cognizance of this case, and that the motion to dismiss the action, which was duly made before that court, should have been allowed. Under Gen. Sts. c. 116, § 10, police courts can exercise no greater powers in their respective counties than justices of the peace. By Gen. Sts. c. 120, defining the jurisdiction and authority of justices of the peace, it is enacted in §§ 6 and 7 that no writ other than a trustee process, issued by a justice of the peace, shall run into any other county than that in which it is returnable, except for the purpose of causing an attachment of property therein. By the officer’s return in the present case, it appears that there was only a nominal attachment, and that no service was made on the defendants except by a summons served upon them by a deputy sheriff of the county of Plymouth. This service was wholly unauthorized by law. The court had no power to direct an officer in another county than Bristol to summon the defendants before them. The service was a nullity, and gave to the court no right or authority to take cognizance of the case.

So far as the motion to dismiss for the want of jurisdiction proceeded on the ground that the defendants had no place of business in the county of Bristol, but only in the county of Plymouth, it could not be maintained, because it was based on a matter of fact which did not appear on the face of the writ, and could only be availed of by a plea in abatement setting forth the facts. But the motion seems to us to be broad enough in its terms to include the defective service. On this ground, therefore, we think the police court ought not to have required the defendants to answer to the merits, and that the order must be,

Action dismissed.