Harris v. Doherty

Massachusetts Supreme Judicial Court

Harris v. Doherty

119 Mass. 142, 1875 Mass. LEXIS 93

Massachusetts Supreme Judicial Court·Decided November 13, 1875·Published·Cited by 8 cases

Opinion

Gray, C. J.

By the Gen. Sts. c. 123, § 21, original writs issuing from this court or the Superior Court must be served fourteen days at least, and from a police court or justice of the peace seven days at least, before the return day; and by § 22, in any action brought against a city or town, or certain other corpo rations, the writ must be served thirty days at least before the ■return day. By c. 142, § 5, trustee processes must be “ served [143] on the defendant and each of the trustees in the manner prescribed for the service of an original summons without an attachment.” As no time is otherwise prescribed for the service of trustee processes, “ the manner ” evidently includes the time, as well as the form, of service. This writ, therefore, having been served upon the city of Boston, as trustee of the principal defendant, less than thirty days before the return day, was not legally served upon, the city. Stimpson v. Malden, 109 Mass. 313.

The provision of e. 123, § 19, that original writs issuing from this court or the Superior Court, “ if required to be served fourteen days before the return day, shall be made returnable at the court next to be held after the expiration of fourteen days from the date of the writ; and if required to be served thirty days before the return day, shall be made returnable to the court next to be held after the expiration of thirty days from the date of the writ,” creates no difficulty which may not be avoided by the plaintiff in any action; for if a city, town or other corporation named in § 22, is summoned as trustee, so that the writ cannot be made returnable within thirty days, it may be served on the principal defendant, as well as on another trustee, who is not entitled to more than fourteen days’ notice, fourteen days before the return day. c. 142, § 6.

The writ in this case not having been legally served upon the trustee, the Superior Court rightly discharged him, and allowed the action to proceed against the defendant, who had been legally served, c. 142, § 7. Belknap v. Gibbens, 13 Met. 471.

Judgment affirmed.

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Gray, C. J.

By the Gen. Sts. c. 123, § 21, original writs issuing from this court or the Superior Court must be served fourteen days at least, and from a police court or justice of the peace seven days at least, before the return day; and by § 22, in any action brought against a city or town, or certain other corpo rations, the writ must be served thirty days at least before the ■return day. By c. 142, § 5, trustee processes must be “ served [143] on the defendant and each of the trustees in the manner prescribed for the service of an original summons without an attachment.” As no time is otherwise prescribed for the service of trustee processes, “ the manner ” evidently includes the time, as well as the form, of service. This writ, therefore, having been served upon the city of Boston, as trustee of the principal defendant, less than thirty days before the return day, was not legally served upon, the city. Stimpson v. Malden, 109 Mass. 313.

The provision of e. 123, § 19, that original writs issuing from this court or the Superior Court, “ if required to be served fourteen days before the return day, shall be made returnable at the court next to be held after the expiration of fourteen days from the date of the writ; and if required to be served thirty days before the return day, shall be made returnable to the court next to be held after the expiration of thirty days from the date of the writ,” creates no difficulty which may not be avoided by the plaintiff in any action; for if a city, town or other corporation named in § 22, is summoned as trustee, so that the writ cannot be made returnable within thirty days, it may be served on the principal defendant, as well as on another trustee, who is not entitled to more than fourteen days’ notice, fourteen days before the return day. c. 142, § 6.

The writ in this case not having been legally served upon the trustee, the Superior Court rightly discharged him, and allowed the action to proceed against the defendant, who had been legally served, c. 142, § 7. Belknap v. Gibbens, 13 Met. 471.

Judgment affirmed.

Harris v. Doherty, 119 Mass. 142, 1875 Mass. LEXIS 93 (Mass. 1875).

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