Byler v. Jones

• Decision Date: 31 October 1883
• Citation: 79 Mo. 261
• Parties: BYLER v. JONES, Appellant.
• Court: Missouri Supreme Court

79 Mo. 261

BYLER

v.JONES, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Linn Common Pleas Court.--HON. THOMAS WHITAKER, Judge.

REVERSED.

Edwin Silver and Torrance & Hill for appellant.

Myers & Crandall for respondent.

MARTIN, C.

This was an action for damages against the defendant for debauching and seducing the daughter and servant of plaintiff, and was commenced on the 30th day of September, 1879. At the return term in November of the same year, the defendant filed the following answer or plea to the jurisdiction of the court over him as a party defendant:

“Now comes the defendant, and for this his plea to the jurisdiction of the court, and as reasons in denial of the jurisdiction thereof, states that he was at the time of the commencement of this suit, and for a long time prior thereto, a resident of the county of Morgan and State of Missouri; that for the purpose of compelling defendant to defend this case in the court the plaintiff wrongfully procured a warrant to be sued out before V. B. Bowers, a justice of the peace within and for Bucklin township, county of Linn aforesaid, charging defendant with the crime of assault with intent to commit a rape, and did cause said defendant to be arrested in the county of Morgan, aforesaid, and brought before said justice for examination under said charge, and that on the 2nd day of October, 1879, in the county of Linn, aforesaid, and while said defendant was under arrest, as aforesaid, the said plaintiff procured the summons to be served upon him to answer this action; that immediately afterward said defendant was discharged by the justice, and released from custody and returned to his home in the county of Morgan, aforesaid; that at the time of the service, as aforesaid, to answer in this cause, defendant was not a resident of Linn county, and defendant avers that a wrongful and improper use of the process of this court has been used at the instance and procurement of plaintiff to compel defendant to appear and defend this suit at great cost, expense and inconvenience, and that such action is wholly ineffective to give this court jurisdiction over defendant for the reasons aforesaid.”

To this answer or plea the plaintiff filed a motion asking the court to strike it out on the ground that it constituted no defense to the case, was unauthorized by our statutes, and was not verified by affidavit. This motion was sustained, against the objection and exception of the defendant, who declined to answer further. Thereupon an interlocutory judgment was rendered against him, and at a subsequent term damages were assessed and judgment entered for $2,500. After motions for new trial and in arrest of judgment were overruled, the defendant took his appeal to this court.

1. CIVIL JURISDICTION NOT ACQUIRED BY USE OF CRIMINAL PROCESS: practice.

Our Practice Act provides that suits by summons shall be brought “when the defendant is a resident of the State, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found.” R. S. 1879, § 3481. The motion...