Walling v. Beers

120 Mass. 548, 1876 Mass. LEXIS 245

Opinion

Ames, J.

The decree sought for was to operate upon the defendant personally, and it was therefore necessary that he should be personally brought within the jurisdiction of the court. The service which was attempted to be made upon him, by a copy left at his last and usual place of abode in New York, would not have that effect. Spurr v. Scoville, 3 Cush. 578. Moody v. Gay. 15 Gray, 457.

It is true that he was served with a notice to show cause why a preliminary injunction should not issue as prayed for in the bill, and that, upon his failure to appear, such an injunction was granted. And, at a later stage of the case, this injunction was dissolved upon his filing a written stipulation to fulfil and promptly comply with any decree of the court in favor of the plaintiff, if there should be any such decree. But, although the case was tried, upon issue joined upon the answer, the objection upon the ground of want of jurisdiction was seasonably taken. There was no formal motion that the bill should be dismissed, but it is sufficient that, by the form of his appearance, the objection was brought to the attention of the court. The defendant, by proceeding to trial afterwards, does not lose the right to say that he did not thereby withdraw his protest against the jurisdiction of the court. Bill dismissed, with costs.