Legal Question in Civil Litigation in Massachusetts

We have a civil case against a business that took our deposit and never performed the work. We won the judgement against this company 5 years ago but they are now trying to have the judgement thrown out because when our lawyer served them the sheriff only delivered the service to the husband and not the wife. The wife is the president of the company and the service had both of their names as well as the company name on it. Is there any precidence saying that you can service a husband and wife DBA the company on one service. The judge is saying that since the husband is the one who received the service and has filed bankruptcy and they have no records of the wife being served we must either prove she was served or find a case where the husband and wife were served on the same document. The wife answered the service on their company letterhead and signed it even though the husband is the one who received the service in hand. Please help.

Asked on 12/29/09, 7:26 am

2 Answers from Attorneys

Alan Fanger Alan S. Fanger, Esq.

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Thanks for your inquiry. First of all, if I am understanding you correctly you brought suit against an unincorporated business that is owned by a husband and wife together. Based on this understanding I would want to know precisely what the "return of service" says. If it says that the husband was served in hand and accepted service for the wife as well, then you have a good argument that both husband and wife were on notice of the suit. If the sheriff/constable served only the husband without accepting service for the wife, then you would be left to argue that service on the husband is effectively service on the wife. There is probably a case somewhere that provides the answer to that question, but it may be from a state other than Massachusetts (which would be persuasive though not binding upon the judge). It is worth performing the research to try to find such a case or cases.

Also, do you know definitively that thus business is/was owned by both the husband and wife as opposed to just the wife? If you have any question about this, you should check with the town/city clerk in the municipality in which the business was located at the time, as persons conducting a business under a 'trade name" are required to file a "DBA" certificate with the clerk's office identifying the owner. If the wife was the owner and the husband was served, you may be able to argue that the husband was served as the wife's "agent".

Answered on 1/03/10, 8:56 am

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