Comstock v. Holbrook

82 Mass. 111

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1860
• Status: Published

Opinion

Metcalf, J.

The judgment of the circuit court of the United States, on which this action is brought, must be regarded as valid. That court had jurisdiction of the cause and of the parties, in the original action against the defendant, and had authority, by the laws of congress, to issue a writ of scire facias on the judgment in that action. The scire facias was not a new action, but a continuation of the old one. Wright v. Nutt, 1 T. R. 389. It was indeed necessary that notice thereof should be given to the defendant before judgment thereon could legally be rendered. But, as the law prescribed no form of notice to a defendant out of the district where the court was held, it was for the court to cause such notice to be given to him as should be reasonable and enable him to appear and defend his rights. The notice given to the defendant was actual, personal and seasonable,, and though it was not in any form which had been ordered by the court, and was not proved by a return of an officer of the court, as such officer, but by his affidavit, yet it was adopted by the court as sufficient; and the judgment thereafter rendered must be deemed valid, and this action thereon be sustained. The circuit court could not be ousted of its jurisdiction by the absence of the defendant from the district in which the action was pending; and service of notice by any one, whose affidavit the court believed to be true, would have been as legal and effectual as that which was unofficially given by the marshal. Judgment for the plaintiff.