Packard v. Matthews

75 Mass. 311

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Dewey, J.

The facts stated in the assignment of errors having been found by the jury, the entry of a reversal of the judgment in favor of the defendant in error was correct. The cases of Downs v. Fuller, 2 Met. 135, and Leonard v. Bryant, 11 Met, 370, and 2 Cush. 35, seem to have settled the construction of Rev. Sts. cc. 90 and 92, as to the service of writs, so far at least, that where the defendant is out of the Commonwealth at the time of the service, and not an inhabitant or resident thereof, and the only service made is by attaching real estate, and leaving a summons at the defendant’s last and usual place of abode, the defendant is, in addition to such service, entitled to such further notice, and continuance of the action, as is provided in c. 92, § 3. -

The reversal in a case like the present must be general, as this court cannot now make such order as the court of common pleas ought to have done. Had it been a judgment for a greater sum than it ought to have been, or error of that kind, the court might now render such judgment as the court of common pleas should have rendered. Rev. Sts. c. 82, § 20.

Judgment of reversal affirmed.