Such rule as to the conclusiveness of the sheriff's return is applicable, however, "only when it appears that the defendant or the party against whom it is applied has had some actual notice of the pendency of the action and some opportunity to be heard prior to judgment." Shapiro v. Roper'sEnterprises, Inc., 1981 Mass. App. Div. 195, 197. See, e.g., Hardy v. Utica Mut. Ins. Co., 369 Mass. 696, 700 (1976); AtlasElev. Co. v. Stasinos, supra at 288; Smith v. Arnold, 4 Mass. App. Ct. 614, 616-617 (1976). In this case, the defendant's uncontroverted affidavit denies any claim that he had actual notice of the action, or that he was afforded any opportunity to be heard prior to the entry of the default judgment even though the plaintiff was at all times aware of his home address.
Elementary constitutional safeguards mandate such service, for even minimum due process entails notice and an opportunity to be heard. See, generally, LaPointe v. License Board of Worcester, 389 Mass. 454, 458 (1983); Strange v. Powers, 358 Mass. 126, 135-136 (1970); O'Leary, Pet., 325 Mass. 179, 182 (1950). Where, as in the instant case, such fundamental constitutional guarantees are overlooked, any judgment rendered is void. Euston Realty Co. v. Lewis, 1981 Mass. App. Div. 191, 192; Shapiro v. Roper'sEnterprises, Inc., 1981 Mass. App. Div. 195, 196-197. The plaintiff endeavors to avoid the procedural due process problems inherent in her failure to serve DeMoulas by suggesting that such service was unnecessary because DeMoulas was not a new party to the action.
Copies of the pertinent Milton Police Department reports are appended to the plaintiffs' affidavit. As a basis for her motion and this appeal, the defendant asserts that she has been denied due process by virtue of her being denied an opportunity to be heard. For authority, she relies upon Jackson v. Lawrence, 1978 Mass. App. Div. 453, Shapiro v. Roper's Enterprises, Inc., 1981 Mass. App. Div. 195, and Southeastern Bank and Trust, Company v. WoodhouseRealty and Development, Inc., 1983 Mass. App. Div. 84, all of which address the issue of proper service. In the Lawrence case, service was allegedly made upon the defendant by leaving at and mailing to the last and usual place of abode.
The report states that it contains all the evidence material to the issue reported. The case of Shapiro v. Roper's Enterprises, Inc. 1981 Mass. App. Div. 195 presents a somewhat similar set of facts. In that case, there was contradictory evidence as to service, the return showing in hand service and the person allegedly served denying absolutely any service.