Baker v. Copeland

4 N.E. 606, 140 Mass. 342, 1885 Mass. LEXIS 366

• Court: Massachusetts Supreme Judicial Court
• Decided: November 28, 1885
• Status: Published

Opinion

By the Court.

The defendant, having been illegally arrested in an action of tort returnable to the Superior Court, appeared specially in that court, and moved to dismiss the action for insufficiency of service. The court refused to allow the plaintiff to take out an order for further service, and dismissed the action. The plaintiff excepted to these proceedings of the Superior Court.

E. 0. Grilman $ O. M. Barnes, for the plaintiff. W. E. Powers, for the defendant.

By the Pub. Sts. c. 161, § 84, it is within the discretion of the court, if the service of a writ is defective or insufficient, to issue an order for further service. No exception lies to the exercise of such discretion.

The plaintiff now contends that the action ought not to have been dismissed, because, by giving a bail bond, the defendant waived his right to object to the service. This is not so. The bond was given alio intuitu, to procure his discharge from imprisonment, and the fact that he gave it does not indicate that he surrendered his right to object, upon the return of the writ, that the service was illegal. Carleton v. Akron Sewer Pipe Co. 129 Mass. 40.

Exceptions overruled.