Home SALLY QUINN vs. TIMOTHY E. QUINN.

5 Mass. App. Ct. 794

March 14, 1977

The plaintiff brought this action to recover upon a foreign judgment issued by the Family Court for the County of Providence, State of Rhode Island. A foreign judgment is not entitled to full faith and credit if the defendant can show that the court of the other State did not have jurisdiction over his person. Chicago Title & Trust Co. v. Smith, 185 Mass. 363 , 366 (1904). See Milliken v. Meyer, 311 U.S. 457, 462 (1940). See also James, Civil Procedure Section 11.6 (1965). As the validity of the foreign judgment can be attacked by the use of extrinsic evidence (Restatement of Judgments, Section 12, and Comment [1942]; see Portland Me. Publishing Co. v. Eastern Tractors Co. Inc. 289 Mass. 13 , 17 [1935]), it was proper for the defendant to raise that issue by presenting affidavits to the effect that the service of process on him in Rhode Island was made on a Sunday and was therefore invalid under Rhode Island law. R.I. Gen. Laws Section 9-5-24 (1969). Contrast Robinson v. Freeman, 236 Mass. 446 , 447 (1920). The evidence presented by the defendant to the effect that service of process was not made on a secular day, coupled with the absence in the record of a copy of the record of process, requires the conclusion that a genuine issue of material fact was thus created. It was therefore improper for summary judgment to have been granted to the plaintiff. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719 , 722 (1976). See Community Natl. Bank v. Dawes, 369 Mass. 550 , 553-554 (1976).

Judgment reversed.

Home MATT DOYLE, INC. vs. BOARD OF SELECTMEN OF CHELMSFORD.

5 Mass. App. Ct. 794

March 14, 1977

Reading the provisions of G. L. c. 138, Sections 15 and 16B, together, it is clear that no original license for a package store can be "issued" by a "local licensing authority" (c. 138, Section 1) unless or until (a) the local authority has voted to "grant" the application for the license and (b) the "commission" (Section 1) has approved the grant and the "applicant." Connolly v. Alcoholic Beverages Control Commn. 334 Mass. 613 , 615-619 (1956). If (as in this case) the commission does give such approval, the local authority must issue the license "not later than seven days following receipt of notice of approval by the commission" (Section 16B), subject to the applicant's paying into "the city or town treasury" (Section 70) the "license fee" which the local authority "may determine in the first instance when originally issuing" the license (Section 15). Having in mind (c) that the seventh paragraph of Section 23 makes no provision for the refund of the whole or any part of a license fee in the event of the commission's refusal to grant the required approval and (d) that an original license "shall expire on December thirty-first of the year of issue" (Section 23; Piona v. Alcoholic Beverages Control Commn. 332 Mass. 53 , 57 [1954]) regardless of any delay in securing commission approval

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which may be caused by proceedings under the fourth paragraph of Section 67 (such as appear to have occurred in this case), we conclude (e) that Section 15 contemplates that the local authority is not required to determine the fee for the issuance of an original license under Section 15 until after the commission approval has been obtained and (f) that the forfeiture provisions of the last sentence of the first paragraph of Section 16B cannot be invoked by the local authority until after the expiration of fourteen days following the date on which the fee is so determined. As the defendant board has "[a]t no time . . . established any specific . . . fee for the license here at issue" despite the plaintiff's request that it do so "so that the same can be paid and the license issued promptly," we hold that there has been no forfeiture under the provisions of Sections 16B and 70. 2. No other reason has been advanced by the defendant for its refusal to issue the license (see the Connolly case, at 615), and we find it unnecessary to determine the effect of the last sentence of the fourth paragraph of Section 23. If there has been compliance with the terms of the judgment (no stay having been obtained), the same is affirmed; if there has been no compliance, the judgment is to be modified so as to provide a new time schedule for the determination of the license fee, the payment of the fee, and the issuance of the license, and, as so modified, is affirmed.

So ordered.