Mowry v. Chase

100 Mass. 79

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1868
• Status: Published

Opinion

Chapman, C. J.

By going into the state of Rhode Island the defendant subjected himself to the jurisdiction of its courts; and, if he was sued there, and the writ was served upon him personally in such a manner as would be binding upon an inhabitant of the state, a valid judgment might be recovered against him. If he had not gone there, it would have been otherwise. Ewer v. Coffin, 1 Cush. 23. Phelps v. Brewer, 9 Cush. 390. The jury have found that he was arrested on the writ; and that the arrest was not abandoned. These questions were properly submitted to them. Carleton v. Bickford, 13 Gray, 591. The jury were properly instructed that it was not necessary to touch the person of the defendant in order to make an arrest. It is enough, to constitute an arrest, if the party be within the power of the officer and submit to the arrest. Williams v. Jones, Cas. temp. Hardw. 301. Arrowsmith v. Le Mesurier, 2 New Rep. 211. Strout v. Gooch, 8 Greenl. 126. Gold v. Bissell, 1 Wend. 215

The statutes of Rhode Island which are referred to (Rev. Sts. c. 179) do not expressly require that, when service of a writ is made by arresting the person of the defendant, it is necessary to commit him to jail, or hold him to bail, in order to make the service valid; nor is any decision of the courts of that state cited on the part of the defendant, showing that there was not a valid service of the writ. The evidence as to the unwritten law of the state was properly admitted, such law being provable as a fact. Holman v. King, 7 Met. 384.

If the defendant, after service of the writ, settled the demand, and the plaintiff fraudulently proceeded to obtain the judgment, the defendant’s remedy would be by obtaining a review or a new trial in the court where the judgment was rendered. It appearing that the court in Rhode Island had jurisdiction of the person of the defendant, and that the writ was served upon him, and the service not abandoned, this court is bound to give full faith and credit to the judgment rendered, and cannot inquire into the merits of the case. Hall v. Williams, 6 Pick. 232. Knapp v. Abell, 10 Allen, 485. If the provisions of the Gen. Sts. c. 129, § 78,

* apply to an action brought upon a foreign judgment, still no exception lies to the ruling of the judge, as the power there given is discretionary.

In this view of the case, all the rulings of the presiding judge were correct. Exceptions overruled.

In any action upon a judgment obtained by default, and without the knowledge of the defendant, the court may, in its discretion, and upon such terms as it deems reasonable, allow the defendant to show in defence any payment, satisfaction or extinguishment of the claim, prior to the obtaining of such judgment, or any matter of fraud, which in either case he might have shown upon a writ of review in the original suit; provided such action is brought within six years from the rendition of such judgment.