Byler v. Jones

• Decision Date: 14 June 1886
• Citation: 22 Mo.App. 623
• Parties: J. G. BYLER, Respondent, v. CHARLES E. JONES, Appellant.
• Court: Kansas Court of Appeals

22 Mo.App. 623

J. G. BYLER, Respondent, v. CHARLES E. JONES, Appellant.

Court of Appeals of Missouri, Kansas City.

June 14, 1886

APPEAL from Linn Circuit Court, HON. G. D. BURGESS, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action for damages against the defendant for debauching and seducing the daughter and servant of plaintiff, and was begun on the thirtieth day of September 1879, in the common pleas court of Linn county. At the return term the defendant filed the following 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 this court, the plaintiff wrongfully procured a warrant to be sued out before B. 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 second 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 afterwards 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."

The plaintiff filed a motion asking the court to strike out this plea. The court sustained the motion. The defendant declined to answer further. In due time, the court rendered judgment against defendant, from which he appealed to the supreme court.

The supreme court held that the plea was a good plea to the jurisdiction of the Linn court, and that, the allegations of the petition being admitted, that court acquired no jurisdiction over the person of defendant. Byler v. Jones, 79 Mo. 263. The case was, accordingly, remanded for new trial.

Under the law abolishing the common pleas court, the case was transferred to the circuit court of Linn county. In the latter court, the plaintiff filed the following answer to the plea:

" Now comes plaintiff, and for answer to defendant's answer, in the nature of a plea to the jurisdiction denies that defendant was arrested and brought into the jurisdiction of this court for the purpose of serving process on him in this case, or that plaintiff procured a warrant to be issued for the defendant wrongfully, to compel him to defend this case. Plaintiff further denies that there has been any wrongful or improper use of the process in securing jurisdiction of the defendant, and denies all the allegations of the answer of the defendant."

At a trial of the issues thus presented, the defendant introduced evidence tending to prove the allegations of the plea; and the plaintiff introduced evidence tending to prove that he did not procure the arrest of the defendant for the purpose of getting him into the jurisdiction of the Linn court, for the purpose of serving him with civil process in this case. All the evidence did show, however, that the plaintiff did procure the arrest of the defendant in Morgan county, Missouri, upon the charge of having committed an assault upon the plaintiff's daughter, with the intent to ravish her, and did, by means of such arrest, have the defendant transported to Linn county; and that the defendant, upon a hearing before a justice of the peace in Linn county, on the charge thus made against him, was discharged. The defendant testified that he was served with the summons in this case, during the hearing before the justice of the peace; the plaintiff testified that such service was had immediately upon the defendant's discharge by the justice.

Upon this state of the proof the court refused to give the following declarations of law, asked by the defendant:

" 1. If the court finds, from the evidence, that the defendant was arrested at his home and place of residence in Morgan county, Missouri, by or at the instance of the plaintiff, and brought to Linn county, Missouri, to answer a criminal charge of assault to commit a rape upon the person of plaintiff's daughter, and that before, or immediately after, defendant was discharged from such arrest and accusation, he was served with summons in this case, which had heretofore been issued and placed in the hands of the sheriff of said Linn county, for service, then the finding of the court on the issue on trial must be for defendant."

" 2. Under the undisputed evidence in this case, the finding must be for defendant."

And the court gave for the plaintiff the following declaration of law:

" That, although defendant was brought into the jurisdiction of this court, by virtue of an arrest on a charge of rape, and served, immediately after his acquittal or discharge, with process in this case, yet the finding should be for the plaintiff, unless the court is satisfied, by a preponderance of the evidence, that said arrest was made for the purpose of getting him into the jurisdiction of this court, for the purpose of serving him with civil process in this case."

The court found the issues in favor of the plaintiff. The defendant made no further defence. The plaintiff's damages were assessed at the sum of fifteen hundred dollars, for which judgment was entered. The defendant has appealed to this court.

A. W. MULLINS, for the appellant.

I. Section 3481, Revised Statutes, does not extend to any cases other than those in which parties voluntarily, and, of their own volition, go into the county where the plaintiff resides, and thus submit themselves to the jurisdiction of such county. The defendant was brought into the county, in this case, by the constable, as a prisoner. This method, says the supreme court, in this case, " cannot receive the approbation of this court." Byler v. Jones, 79 Mo. 261; Mathews v. Tufts, 87 N.Y. 568; Townsend v. Smith, 47 Wis. 623; Marsh's Adm'r v. Bast, 41 Mo. 493.

II It did not devolve upon defendant to satisfy the court, by a preponderance of the evidence, that the arrest of defendant was made to get him into " the jurisdiction of this court, for the purpose of serving him with civil process in this case." It ought to have been sufficient if he sustained his plea by the weight of evidence.

III. The evidence is clearly and conclusively against the finding of the court, even on the theory upon which the court tried the case. The prosecution could not have been in good faith on the criminal charge (under cover of which the civil process was served in this case). The proofs and circumstances outweighed the mere denials of the plaintiff.

A. W. MYERS and M. M. CRANDALL, for the respondent.

I. It is admitted to be settled law that a plaintiff, who, by fraud, gets a defendant into the jurisdiction of a court, and then serves process on him; the court acquires no jurisdiction of the person. Dunlap v. Cody, 31 Iowa 260; Wingate v. Insley, 12 Pick. 270. But the question as to the object and purpose of the party in getting defendant into the jurisdiction is a question of fact, to be determined by the trial court. Byler v. Jones, 79 Mo. 261; Dunlap v. Cody, supra.

II. The finding of the trial court on the question of fact, as to whether there was any contrivance and wrong, or abuse of process, will not be reviewed by this court. Rosencrans v. Railroad, 83 Mo. 678; Boyle v. Jones, 78 Mo. 403; Elliott v. Rosenberg, 17 Mo.App. 667; Griffith v. Dowdall, 17 Mo.App. 280.

III. The court did not err in giving plaintiff's instruction for it simply submitted the question of fact set out in the plea to the jurisdiction. The burden of proof rested on defendant, who affirmed the facts. ...