Opinion
January 17, 1905.
May 17, 1905.
Present: KNOWLTON, C.J., MORTON, LATHROP, LORING, BRALEY, JJ.
Practice, Civil, Service of writ. Writ, Service of. Error. Judgment, Vacation of.
Under R.L.c. 167, § 34, the service of a writ at the last and usual place of abode of the defendant is not good in case the defendant is temporarily absent from the Commonwealth without the further notice required for absent defendants by R.L.c. 170.
A writ of error lies to vacate a judgment rendered on default after insufficient service on the defendant.
W.C. Cogswell, for the plaintiff in error.
J.P. Prince, pro se.
This is a writ of error to vacate a judgment rendered on default after service at the defendant's last and usual place of abode. In the assignment of errors it is alleged that the defendant in the original action was absent from the Commonwealth at the time of service of the writ, and continued to be absent therefrom until a time after the entry of judgment, and no further notice was given, as provided in R.L.c. 170.
The contention of the defendant in error is that where the defendant is a resident and is only temporarily absent from the Commonwealth, further notice need not be given.
His argument is that the provisions of § 34 of R.L.c. 167, are to be read and construed in connection with those of § 31; and so construed, § 34 applies only to non-residents.
But if the original act, of which R.L.c. 167, § 34 is the present re-enactment, is looked at, it is plain that that section is not to be read in connection with § 31, and that it does include residents of the Commonwealth temporarily absent from it.
The original act, of which R.L.c. 167, § 34 is now the reenactment, is Rev. Sts. c. 90, § 48, and originated in the report of the commissioners on the Revised Statutes. See c. 90, § 43. The original act of which R.L.c. 167, § 31 is the re-enactment originated in Prov. St. 1700-1, c. 20, § 1; 1 Prov. Laws, (State ed.) 447.
The provision of Rev. Sts. c. 90, § 48, (now after successive re-enactments contained in substance in R.L.c. 167, § 34,) is: "In all cases, when the defendant is out of the State at the time of the service of the summons, he shall, in addition to the service thereof, as herein prescribed, be entitled to further notice of the suit, as provided in the ninety-second chapter." The occasion of this section seems to have been to make certain of the point now urged by the defendant in error.
In addition to this there are two cases where a judgment has been held bad against a resident temporarily absent from the Commonwealth. Johnson v. Thaxter, 12 Gray, 198. Smith v. Paige, 4 Allen, 94.
Judgment vacated.