Johnson v. Carr

1. As to the motion to dismiss. At the hearing on this motion the only evidence was the record. The judge refused to grant certain rulings requested by the defendant and overruled the motion. This part of the case is before us upon the defendant’s exceptions to this refusal and on his appeal from the order overruling the motion.

The exceptions raise the question whether upon the record it appears that at the time of the attachment the defendant was a non-resident as distinguished from an absent defendant. If he was a non-resident, then, inasmuch as no personal service was made upon him and no notice whatever was given to him within one year of the entry of the action, the action should have been dismissed. R. L. c. 170, § 5. If, however, the defendant was merely an absent defendant as distinguished from a non-resident, then whether the action should be dismissed was within the discretion of the court. R. L. c. 170, § 6.

In the writ which issued from the District Court of East Norfolk, the plaintiff was described as of “ Quincy in said county of Norfolk,” and the defendant as “of said Quincy.” The officer’s return states that he attached all the right, title and interest of the defendant in and to real estate in the county aforesaid, and further that he made diligent search for the defendant “ and for his last and usual place of abode, tenant, agent and attorney, but have been unable to find either within my precinct and could make no further service of this writ upon him.” This falls far short of saying that the defendant was a *6non-resident or of conclusively showing that he was. It is the ordinary return of an officer that he cannot find the defendant or his last and usual place of abode, or any tenant or agent of his. It is not a return that the defendant has no last and usual place of abode within the precinct of the officer, but only that no such abode is known to the officer. Beyond this his return cannot go. Tilden v. Johnson, 6 Cush. 354.

We are in doubt whether the statement in the bill of exceptions that “ the only evidence before the court was the record ” means that the evidence was confined to the record of the case itself, or whether it included also the evidence of the proceedings of the Probate Court appointing a receiver. The parties having argued the case upon the latter theory, however, we shall consider the case in the same way; although it is to be noted that on a motion to dismiss only the record before the court is considered. Without reciting in detail the allegations of the petition for a receiver and the language of the order appointing him, it is sufficient to say that they are all perfectly consistent with the view- that the absentee was still a resident of this Commonwealth. Nor can the recital in the order of notice of the District Court for further service that “ the defendant was not an inhabitant of this Commonwealth ” be conclusive. It seems to be based entirely upon the suggestion of the plaintiff and an inspection of the officer’s return, which of themselves are not sufficient to require such a finding.

Upon a careful inspection of the whole record the refusal to rule as matter of law that the defendant was a non-resident at the time of the attachment was correct and the rulings requested which were based upon the theory that he was a non-resident were properly refused. On this part of the case the exceptions are overruled and the order of the judge upon the motion to dismiss is affirmed.

2. As to the exceptions taken during the trial on the merits. These exceptions arise upon the refusal of the judge to make certain rulings and upon certain rulings actually made. The case was tried before a judge sitting without a jury. One ground of defense appears to have been the statute of limitations. By reference to the first bill of exceptions “ which may be referred to for a fuller statement of the case,” it appears that *7the causes of action set forth in the two counts of the declaration occurred, the first in February, 1895, and the second in May, 1895. The writ was dated March 19, 1903, more than six years after the respective causes of action had accrued. Under these circumstances the judge ruled in substance that as to each count the burden of proof was upon the plaintiff to prove the cause of action,'and that the writ issued within the “period of limitation,” and that if he failed to show such an absence of the defendant from the Commonwealth as worked a change of domicil, then the statute of limitations would be a bar and the action could not be maintained. He further found as a fact that the defendant left this Commonwealth on or about August 10, 1898, and never has returned. Having so ruled and found, the judge found for the plaintiff. The finding necessarily implies that the time during which the defendant was actually domiciled out of the Commonwealth is the only time which did not run against the plaintiff, or, in other words, deducting from the time between the accruing of the respective causes of action and the date of the writ, the time during which the defendant was domiciled out of the Commonwealth, there must have been less than six years. The record does not state that all the evidence is therein reported, and hence we cannot know whether it warranted such a finding. We do not understand, however, that the defendant contends that the finding was not warranted.

The defendant’s complaint is that if his domicil was changed as found by the judge, then the judge should have given his sixth request, which was as follows: “ If the plaintiff shall show such an absence of the defendant from the State as to work a change of domicil, then the action cannot be maintained under [Tt. L.] c. 170, § 5.” But the answer is that no such question was before the court. The defendant had attempted to raise that question on his motion to dismiss, which, being decided only upon the facts appearing of record, was disallowed. Even if the domicil had been changed, it does not follow that the plaintiff has no cause of action but simply that the _ present writ should be abated. This defense should be pleaded in abatement and not in bar. But it was not pleaded in abatement. The case therefore had gone beyond the stage where the question was material. Nor was the finding made upon the motion to dismiss con-*8elusive. It was a decision made on the facts appearing of record, and was not conclusive upon the parties as to the actual facts. Notwithstanding the motion to dismiss was denied, a plea in abatement could have been filed and the facts shown. The first, second, third, fourth and sixth requests were properly refused.

Upon the findings of the judge under the fifth and seventh rulings adopted by him, the second and third rulings requested by the plaintiff and refused by the judge could not have prejudiced the defendant.

The result is that both bills of exceptions must be overruled. But as there seems to have been no service upon the defendant we do not mean to intimate whether the judgment should be general, or whether it should be special affecting only the property attached. That question may arise at a later stage of the case.

Exceptions overruled.