Pinon v. Pollard

WARD, J.

This is an appeal by plaintiff from an order, judgment and decree vacating and setting aside a judgment entered upon default after service “personally and by publication” upon defendant. In June of 1941 plaintiff filed an action for damages for injuries sustained following an alleged assault upon plaintiff by defendant in San Mateo County. The complaint prayed for damages in the sum of $10,984.76. Defendant was served with summons personally in November, 1941, in the State of New Hampshire. The following month he appeared specially to quash service of summons. His affidavit in support of the motion set forth: “I presently reside at 209 Babcock Street, Brookline, Massachusetts where I have resided since my marriage in 1939. My wife lived there prior to our marriage for about 23 years. The summons and complaint in this action were served on me at Rockingham Park Race Track, Salem, New Hampshire, on November 20, 1941. By profession I am a jockey, that is a rider of race horses. The nature of my vocation necessarily requires that I travel to

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many states. I have worked in Rhode Island, New Hampshire, New York, Maryland, California and other states as well as in my home state of Massachusetts. Towards the end of last year my work took me to California where I remained until about April 14,1941, at which time I left for my home in Brookline, Massachusetts.” The attorney for plaintiff filed a counter affidavit which asserted that the ‘ ‘ defendant resided in the state of California and affiant is informed and believes and therefore alleges that defendant owns a home at Santa Anita, California, and that the aforesaid town and state is his legal residence. ’ ’ The motion to quash service was granted. The order granting the motion was in effect a declaration that Pollard’s residence since his marriage in 1939 had been in Massachusetts and not in California. Subsequently, upon plaintiff’s application for service of summons by publication, it was averred by affidavit “That the defendant last resided in the city of San Mateo, county of San Mateo, in this state, but he departed from this state prior to the commencement of said action and resides at 209 Babcock Street, Brookline, Massachusetts.” This averment is contrary to the adjudication in the order quashing service of summons that defendant’s legal residence was Massachusetts. Despite this fact, service of summons by publication was ordered on April 2, 1942, the summons to be published at least once each week for two months and a copy of the summons and complaint to be sent to defendant’s Massachusetts address. The copy was mailed and the summons published once a week from and including the 10th day of April, 1942, to and including the 12th day of June, 1942. It appears that the default of the defendant was entered June 20, 1942, and on July 24, 1942, the court rendered judgment against him for $4,884.76. The judgment sets forth the following: “. . . service of summons upon the defendant, John Pollard, alias Jack Pollard, alias “Red” Pollard, having been made personally and by publication, as heretofore ordered, said defendant having failed to appear and answer the plaintiff’s complaint filed herein and the default of said defendant having been duly and regularly entered. ...”