United Drug Co. v. Cordley , 239 Mass. 334 ( 1921 )

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. 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. 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. 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. 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. 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. McManus v. Thing, 208 Mass. 55. 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 officer’s 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, which apparently never had obtained process for further service, renounced all rights under the order denying the first motion, and took the position that it 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, 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. Joyce v. Thompson, 230 Mass. 254, 255. 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 of 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 Met. 74. Tilden v. Johnson, 6 Cush. 354, 359. Porter v. Prince, 188 Mass. 80. A defendant also if a non-resident 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. 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.

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 de- ' termine the case on the merits. The judge rightly declined to ad-' mit 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, “ we are satisfied that no paroi evidence could be properly admitted in lieu of the return of the officer.” In M’Gregor v. Brown, 5 Pick. 170, 174, where the question whether land set off on execution was the same land which had been attached on the original writ, and paroi evidence was admitted to show identity, the court say, “ We see no valid objection to the admission of the paroi evidence. It . . . was introduced to show that the land levied on under one description was the same as that which had been attached under a different description.” It also may be shown that a notice to quit was served after instead of before noon of the day of service named in the return. Wardell v. Etter, 143 Mass. 19, 20. The return in these cases was complete. No jurisdictional fact is omitted. The writ commanded the sheriff or his deputy to summon the defendant corporation in accordance with the statute. If this could not be done the officer should have returned the writ into the clerk’s office certifying that he was unable to make such service. It must be assumed that the officer performed his duty and obeyed the order of the court as far as possible. If in his judgment the circumstances warranted only partial compliance with the form of service required, and it was impossible for him to say more, paroi evidence cannot supply what the officer in some form of words must certify in order to make the service complete. The mode of procedure now relied on does not appear to have been sanctioned in any of our own cases. The general rule in this Commonwealth without exception is, that as between the parties, and their privies, the return of the officer is conclusive as to all matters which are properly the subject of a return by him. Slayton v. Chester, 4 Mass. 478. Tilden v. Johnson, 6 Cush. 354, 358. Eastman v. Perkins, 10 Cush. 249. Niles v. Hancock, 3 Met. 568. Collins v. Douglass, 1 Gray, 167. Davis v. Putnam, 5 Gray, 321. Taylor v. Clarke, 121 Mass. 319. Stewart v. Griswold, 134 Mass. 391. Lowery v. Caldwell, 139 Mass. 88, 89. Simmons v. Richards, 171 Mass. 281, 283. The plaintiff urges that Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, supports its position. But in that case, which was a bill in equity under R. L. c. 159, § 3, cl. 7, “ by the trustee process, ” the defendant, a foreign corporation, appeared specially and-filed a plea to the jurisdiction alleging that the service of process upon it “was not due process of law . . . according to either the Constitution of this Commonwealth or the Constitution of the United States.” The plea was a plea in abatement. Young v. Providence & Stonington Steamship Co. 150 Mass. 550, 552, 554, 555, 556. Kimball v. Sweet, 168 Mass. 105. While evidence on the issue raised by the plea was introduced, and the trial court found that the defendant was transacting business within this Commonwealth and that the person served with process was an agent upon whom proper process would be effectual, the question whether on a motion to dismiss the plaintiff can supply by extrinsic evidence essential facts omitted in an officer’s return was not raised. The opinion says, “ The precise point to be decided is whether the defendant railway company was ' engaged in or soliciting business in this Commonwealth’ within the meaning of the pertinent statute. The question involved is a federal one upon which the decisions of the United States Supreme Court are controlling.” It was held that under St. 1913, c. 257, a foreign corporation “ which is engaged in or soliciting business in this Commonwealth ” could be lawfully served with process in the same manner as service upon a domestic corporation. Reynolds v. Missouri, Kansas & Texas Railway, 228 Mass. 584. The attachment in the present case was only nominal, and the court for the reasons stated could not obtain jurisdiction to enter a personal judgment until the defendant had been duly summoned under the governing statute. Potter v. Lapointe Machine Tool Co. 201 Mass. 557, 562, and cases cited. Koontz v. Baltimore & Ohio Railroad, 220 Mass. 285.

It follows that the order allowing the motion to dismiss should be affirmed.

So ordered.