Johnson v. Thaxter

78 Mass. 198

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1858
• Status: Published

Opinion

Bigelow, J.

It is clear that this judgment is erroneous, there having been no such service of the writ on the original defendant as the statute requires. He was out of the State at the time of the service of the summons, and had no notice or knowledge of the pendency of the action. In such case, by the Rev. Sts. c. 90, § 48, it is expressly required that, in addition to leaving a summons at the last and usual abode of the defendant, he shall be entitled to further notice of the suit as required in the Rev. Sts. c. 92, § 3. No such notice was given to the defendant in the original action. Downs v. Fuller, 2 Met. 135. Leonard v. Bryant, 11 Met. 370, and 2 Cush. 32.

That a defect in the service of a writ is good ground for reversing a judgment rendered thereon, by writ of error, has been repeatedly decided by this court. Arnold v. Tourtellol, 13 Pick. 172. Gay v. Richardson, 18 Pick. 417. Tilden v. Johnson, 6 Cush. 354. Bodurtha v. Goodrich, 3 Gray, 508.

A writ of review is a proper remedy to correct an error in a judgment, when the statute has been complied with by causing the writ to be properly served, but through some mistake or accident the defendant' has not had notice of the action. In such action the court has jurisdiction of the case and can proceed to render a proper judgment. But this cannot be done where there has been no legal service of the writ. An essential prerequisite to enable the court to take cognizance of the case is wanting, and no valid judgment can be rendered against the defendant, and if one is rendered, it is erroneous and liable to reversal on error.

The case of Morrison v. Underwood, 5 Cush. 54, is wholly unlike the case at bar. The defendant in that case had notice of the pendency of the action and waived the defect in the service of the writ. Judgment reversed.