Currier v. Gilman

Error — Personal service of writ — Defendant absent from state. The demurrer, like a plea of in nullo est erratum, admits all the facts well alleged in the assignment of errors. For the purpose of this decision, therefore, it is to be taken that, at the time the action of Gilman v. Currier was commenced, and from that time until after the rendition of judgment therein against the defendant by default, Currier was absent from the state and had no knowledge of the suit. It is also to be taken that his place of abode, that is, his dwelling-place or domicile, was in Haverhill in this state, and that a summons in due form of law was left there by the officer after his estate had been attached, as required by sec. 3, ch. 204, Gen. Stats.

By Gen. Stats., ch. 207, sec. 3, it is provided that "when no personal service has been made on the defendant in any action which may be entered without such service the court, on suggestion thereof, may order the action to be continued, and notice to be given of the pendency thereof by publishing the order," c.; and the question is, whether the leaving of a summons at the abode of the defendant, under the circumstances here shown, constitutes a personal service of the writ within the meaning of this statute.

The position of the defendant in error is, that when he caused service of his writ to he made in the exact mode prescribed by law, that is, by leaving a summons in due form at the abode of the defendant in this state, it must be held that a full and perfect service was made, sufficient to give the court jurisdiction of the person of the defendant as well as of the property attached. This claim certainly appears, at first, plausible, to say the least; but I am satisfied upon examination that it cannot be sustained.

A brief review of our legislation on this subject will aid us in coming to a right result. It is to be observed, in the first place, that the provision with respect to the leaving of a summons at the abode or dwelling-house of the defendant, in case his goods or estate are attached, has existed without any substantial change,^* at least since the passage of the "act regulating process and trial of civil causes," February 9, 1791; Laws of 1792, p. 88; id. 1797, p. 88; id. 1805, p. 88; id. 1815, p. 108, sec. 8; id. 1830, p. 91, sec. 11; Rev. Stats., ch. 183, sec. 3; Comp. Stats., p. 466, sec. 3; Gen. Stats., ch. 204, sec. 3. The changes, so far as regards the matter now under consideration, have been merely verbal. It will also be observed that, during this whole period, down to the enactment of the General Statutes which went into effect January 1, 1868, there his existed, alongside this provision for leaving a summons at the dwelling-house of the defendant, another express provision, prescribing in clear and explicit terms the mode to be pursued as to notice when "the person against whom any suit is brought shall he absent from this state at the time of commencing such suit, and shall not have returned at the time appointed for trial."^* Laws 1792, p. 93; id. 1797, p. 92; id. 1805, p. 92; id. 1815, p. 104, sec. 17; id. 1830, p. 92, sec. 13; Rev. Stats., ch. 186, sec. 5; Comp. Stats., p. 480, sec. 5.

To show the extreme jealousy with which the legislature have guarded the rights and interests of a defendant thus absent from the state, and the reluctance with which they have permitted a judgment to be entered up against him when he has had no actual notice of the suit, I will quote the act of 1791 on this point, entire. "When a suit shall be brought against a person who is not all inhabitant or resident in this state, and no personal service be made on the defendant, or when the person against whom any suit is brought shall be absent from this state at the time of commencing such suit, and shall not have returned at the time appointed for trial, the justices of the court before whom such suit is shall continue the action to the next term, and if the defendant doth not appear at the next term by himself or attorney, the court shall further continue the action to the next term, unless the plaintiff shall produce evidence sufficient to satisfy the court that the defendant hath had notice of the suit or process a sufficient time, before such term, to have appealed at said court; and in all such cases, where judgment is entered up by default, after two continuances as aforesaid, and no notice proved as aforesaid, the proof of which notice shall always be in writing and filed in the cause, execution or, writ of seizin shall not issue until the plaintiff or demandant shall have given bond with sufficient surety, in double the value of the estate or sum recovered by such judgment, to respond the judgment that may be rendered on action of review brought to reverse such original judgment, which action may be brought by the defendant at any time within one year next after the rendering such original judgment, and such plaintiff in review may have the benefit of all pleas and advantages that he might have had, had he appeared and pleaded to the original suit, the default notwithstanding. Provided always, that if the plaintiff in such original suit shall consent to have the action continued from term to term, six terms from the commencement of the suit, without any costs after the second term except for the court or clerk's fees, he shall not be obliged to give such bond, and the defendant shall not be entitled to any review."

This act remained in force without alteration from the time of its passage to the adoption of the Revised Statutes, a period of more than half a century. The change made in the Revised Statutes was the substitution of an order of notice to be published in some newspaper in place of the continuances, c., of the earlier act. This provision of the Revised Statutes remained in force at least from 1842 till 1868, another period of over a quarter of a century, without change.

I have traced the coexistence of these two statutes, namely, the one with respect to leaving a summons at the dwelling-house, and the other prescribing the mode of procedure when the defendant is absent from the state and does not return before trial, to show that for a period of seventy-eight years immediately preceding the enactment of the General Statutes it must have been the understanding, not only of the legislature, but of the people and courts of the state, that leaving a summons at the dwelling-house of a defendant who was at the time absent from the state, and who has not returned at the time appointed for trial, did not constitute personal service of a writ; for if it did, it was idle and absurd in the extreme, as well as a great hardship and wrong to the plaintiff, to force him to incur so much inconvenience, expense, and delay in obtaining a judgment in such case.

Look at the section as it stands in the Revised Statutes and in the Compiled Statutes: "In any action commenced against any defendant who is not an inhabitant of this state, or whose residence is unknown to the officer serving the writ, and the goods and estate of the defendant within this state shall be attached, or when the defendant shall be absent from the state at the time of commencing such action, and shall not have returned at the time appointed for trial, and no personal service is made on the defendant, the court on suggestion thereof may order the action to be continued, and notice to be given of the pendency thereof by publishing," c.

In the General Statutes this section is much condensed. The specific enumeration of cases where no personal service has been made is wholly dropped, and the general phrase, "where no personal service has been made on the defendant," substituted in its place; and the question is, whether by this change the legislature intended to repeal the law as it had always before existed in favor of defendants absent from the state at the time of the commencement of the suit, c.

In determining the legislative intent in this particular, we may properly consider the subject-matter to which the act relates; and if the interpretation were doubtful, the court should adopt that which accords with the principles of the common law and with right, rather than that which leads to manifest absurdity and injustice. It is a doctrine of the law, founded upon very fundamental principles of justice and equity, that a judgment ought not to pass against any man in any proceeding without notice, and all opportunity to show cause against it. In the absence of plain and unmistakable words to that effect, it is not to be presumed that the legislature in the present case intended to overturn a rule so salutary, fortified, as it was, by a practice as old as the common law, and guarded by statutes which had been reenacted from time to time by six or eight different legislatures between the adoption of the constitution and the present time. If any inferences are to be drawn, they must be in the other direction.

But it appears that the leaving of a summons at the abode of a defendant absent from the state, who has not returned at the time appointed for trial, has never heretofore been considered personal service. The legislature which enacted the General Statutes, entertaining the same view as all their predecessors on this subject, substituted the phrase "when no personal service has been made," in place of the detailed enumeration of cases where no such service was made; and I cannot think they intended anything more than to abridge the phraseology of the act by striking out a useless verbiage with which up to that time it had been distended.

If we were able to doubt that this construction gives effect to the actual purpose and intention of the legislature in passing the act in question, we are happily relieved of all apprehension on that point by a reference to the report of the General Statutes commissioners. In that report the commissioners say, — "To enable the legislature more readily to comprehend the alterations made in the existing laws by their report, the commissioners have added to the references to the old statutes, under the marginal abstract of each section, a letter or letters pointing out the nature of the change made, as follows: where the change is merely verbal, ``v,'" etc. The section under consideration was enacted by the legislature precisely as reported; and under the marginal abstract we find a reference to "R. S. 186, 5; C. S. 198, 5," and the letter "v," signifying that the change was merely verbal.

This settles the question of actual intent on the part of the legislature, while it, at the same time, gives us a most unequivocal and decided expression of the opinion of the commissioners, to the effect that leaving a summons at the abode of a defendant who is absent from the state at the time, and who shall not have returned at the time appointed for trial, does not constitute personal service of the writ. It is needless to say that the well known character of those eminent gentlemen, all learned lawyers, and all specially qualified to judge in a matter of this sort by a long judicial experience on the bench of the highest court in the state, gives to their opinion a weight of authority which we should hesitate to disregard, even were the matter otherwise in doubt.

It cannot be supposed for a moment that a judgment obtained in the way this is admitted by the demurrer to have been obtained, would be allowed to stand, if any power exists in the court to give the defendant all opportunity to try his case. There is, therefore, no inconsistency or hardship in holding that there was error in its rendition. I am of opinion that there was error, and that the demurrer must be overruled. By the agreement of the parties, the defendant in error is to have leave to withdraw the demurrer and answer further.

CUSHING, C. J., concurred.

^* The act of May 2, 1719, was as follows: "An Act providing that in Suits where Goods or other Estate is attached, the Defendant be summoned. "To the intent that all persons may have due notice to prepare and make their defence in every act and suit commenced against them; "1. BE IT ENACTED by HIS EXCELLENCY the GOVERNOR, COUNCIL, and REPRESENTATIVES, in GENERAL ASSEMBLY convened, and by the AUTHORITY of the same, That when the goods or estate of any person shall be attached at the suit of another in any civil action, a summons in form of law as is prescribed, shall be delivered to the party whose goods or estate are attached, or left at his or her dwelling-house, or place of last and usual abode, fifteen days before the day of the sitting of the court where such attachment is returnable; and in case the defendant was at no time an inhabitant or sojourner within this province, then such summons to be left with his or her tenant, agent, or attorney, and the serving of it to be certified by a sworn officer that executed the attachment, or by affidavit made in court by the person that delivered the same, and by one other credible witness then also present, otherwise the writ shall abate." * * * * * * * * REPORTER.

^* Sec. 2 of the act of May 2, 1719, provided: "AND further IT IS ENACTED by the AUTHORITY aforesaid, That when it happens the party against whom suit is brought, not to be an inhabitant or sojourner within this province, or to be absent out of the same at the time of commencing such suit, and shall not return before the time for trial, the justices of such court where the suit is brought shall continue the action to the next court, and if the defendant doth not then appear, by himself or attorney, and be so remote that the notice of such suit depending could not probably be conveyed to him during the vacancy, the justices at such next court may further continue the action to the court then next following, and no longer: And in such cases where judgment is entered up by default, after two continuances as aforesaid, execution or writ of seizin shall be stayed, and not issue forth until the plaintiff or demandant shall have given bond, with one or more sufficient sureties, in double the value of the estate, or sum recovered by such judgment, to make restitution, and refund and pay back such sum as shall be given in debt or damage, or so much as shall be recovered upon a suit therefor to be bro't within twelve months next after entering up the first judgment; if upon such suit the judgment shall be reversed, annulled, or altered, the security aforesaid to be no further answerable than for the recovery that shall be made upon such suit, to be made within twelve months as aforesaid. "Provided, That no real estate taken in execution granted upon such first judgment shall be alienated or past away, until after the expiration of the said twelve months, or after a new trial brought within the said space of twelve months, to the intent that restitution thereof may be made in case as aforesaid." REPORTER.