Opinion
Decided January 1, 1935.
Upon a return of non est inventus a writ on which an attachment has been made may be entered and an order of notice issued returnable at the ensuing term. A plea in abatement to such writ alleging that the defendant was on the date of the writ and ever thereafter had been an inhabitant of the state should be overruled. The two year limitation imposed by P.L., c. 302, ss. 9, 10 upon the issuance of a scire facias against an administrator applies only to actions for personal injuries. Hence, where a defendant in an action of contract died after an order of notice had been served and after his failing to enter appearance at the term to which the notice was returnable a scire facias to cite in his executor was properly issued, though more than two terms had elapsed since his appointment. A delay in procuring the issuance of the writ in such case not appearing prejudicial to the estate was not a bar to the further maintenance of the writ to compel the appearance of the executor.
CASE, declaring upon the breach of an alleged contract of George W. Sargent, the defendant's testate, to assume the payment of a mortgage note given by the plaintiff to one Shepard. The writ was dated December 16, 1926, and described Sargent as of Derry, which the plaintiff then believed to be his residence. Sargent actually resided at the time in Fremont, and had so resided for about three months. A real estate attachment was made upon the writ December 17, 1926, and on December 20, 1926, the officer made a return non est inventus, stating therein that he had made diligent search for Sargent and had not found him, his residence being unknown to the officer. The writ, with returns, was duly entered on the return date at the January, 1927, term. Thereafter the plaintiff discovered that Sargent had removed from Derry to Fremont.
During that term, on March 8, 1927, an order of notice on Sargent was issued, returnable at the April, 1927, term. The officer served a copy of the writ and of said order by leaving it at Sargent's abode, in Fremont, on March 18, 1927.
Sargent appeared specially by counsel and seasonably filed a plea in abatement upon the ground that on the date of the writ and ever since he had been an inhabitant of the state with a well known place of abode at Fremont.
Sargent died on or about November 28, 1927, without having made a general appearance, and George R. Scammon was appointed executor of his will on December 20, 1927.
The plaintiff filed a motion on October 30, 1928, to cite in the executor to defend the cause. Scammon received a copy of the motion and agreed with the plaintiff's attorney to submit to the court the issues arising upon the plea in abatement. Scammon made no objection to the merits of the plaintiff's claim; on the other hand, he raised no issue except such as arose upon the plea in abatement.
On the 23d of December, 1929, after the lapse of more than two terms subsequent to Sargent's death, but within two years after the appointment of Scammon as his executor, the court issued a writ of scire facias to cite in the executor. Due service of this process was made upon the executor on December 24, 1929, and Scammon entered an appearance pro se on the return date.
The superior court, Burque, J., transferred without ruling the following questions: (1) Whether or not the action should be abated because of the lack of service on Sargent on or before December 20, 1926, and whether or not the service later made on him was authorized by law; (2) Whether or not the action is maintainable against the estate of Sargent, and whether or not the executor should be required to defend it.
Thomas J. Bois and Samuel T. Holmgren, for the plaintiff.
George R. Scammon, pro se, furnished no brief.
(1) The return non est inventus dated December 20, 1926, showing on its face that the residence of Sargent was unknown to the officer, was evidence on which the action was properly entered and continued for notice. The service made upon Sargent in accordance with the subsequent order was authorized by law, and the plea in abatement must be overruled. Burney v. Hodgdon, 66 N.H. 338; Martin v. Wiggin, 67 N.H. 196; National Bank of Lebanon v. Company, 70 N.H. 227.
(2) Since this is not an action to recover for personal injuries, the limitation upon the issuance of a writ of scire facias (P.L., c. 302, ss. 9, 10) does not apply. Shea v. Starr, 76 N.H. 538. It does not appear from the agreed statement of facts that the delay in service of the writ of scire facias from October 30, 1928, to December 23, 1929, even if due to the fault of the plaintiff, was so prejudicial to the defendant that it would be unjust for the action to be prosecuted further (see Shea v. Starr, supra, 541). Consequently the action is maintainable against the estate, and if the executor does not enter general appearance he may be defaulted.
Case discharged.
All concurred.