Iacuone v. Pietranton

• Decision Date: 13 October 1953
• Docket Number: No. 10532,10532
• Citation: 77 S.E.2d 884,138 W.Va. 776
• Court: West Virginia Supreme Court
• Parties: IACUONE, v. PIETRANTON.

Page 884

77 S.E.2d 884

138 W.Va. 776

IACUONE, v. PIETRANTON.

No. 10532.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 1953.

Decided Oct. 13, 1953.

Syllabus by the Court.

1. Time of service of a notice of motion for judgment upon a defendant, in a proceeding prosecuted under Code, 30-2-13, is governed by the provisions of Code, 56-2-5.

2. Where a resident of one county voluntarily appears in another county, in answer to legal process, or its equivalent, he is entitled to immunity from service of civil process in such other county, while answering the process under which he is so appearing, and for a reasonable time thereafter.

3. 'In the absence of an agreement to the contrary the place of residence of the creditor is the place of payment of a debt. It is the duty of the debtor to seek his creditor and make payment to him.' Point 3, Syllabus, Jones v. Main Island Creek Coal Co., 84 W.Va. 245 .

4. The circuit court of a county wherein it was the duty of a debtor to make payment of a debt, and wherein a breach of that duty occurred, has jurisdiction of an action for recovery of the debt.

5. The provision of Code, 56-6-19, requiring that a written charge shall be submitted to counsel on each side, with opportunity to specify and object to any part thereof, before it is read to the jury, is mandatory; and the reading of a charge to the jury without affording counsel that opportunity constitutes prejudicial error.

6. The reading of a charge to a jury, telling them that certain material facts at issue were agreed upon by the parties litigant, constitutes prejudicial error.

Charles M. Love, Charleston, C. Lee Spillers, Wheeling, James R. Wilkin, Wellsburg, W. W. Ingram, Chester, for plaintiff in error.

Pinsky & Mahan, Abraham Pinsky, Walter Mahan, Wellsburg, for defendant in error.

GIVEN, Judge.

This writ of error was granted to a judgment entered in a proceeding prosecuted in the Circuit Court of Brooke County, under Code, 30-2-13, reading: 'If any attorney receive money for his client as such attorney and fail to pay the same on demand, or within six months after receipt thereof, without good and sufficient reason for such failure, it may be recovered from him by suit or motion; and damages in lieu of interest, not exceeding fifteen per cent per annum until paid, may be awarded against him, and he shall be deemed guilty of a misdemeanor and be fined not less than twenty nor more than five hundred dollars.' The indebtedness sued for is the same as that represented by the check for $2,833.33, involved in the case of State v. Pietranton, W.Va., 72 S.E.2d 617.

The defendant, Frank A. Pietranton, an attorney at law, residing in Hancock County and practicing law in Hancock and Brooke Counties, was employed by plaintiff, Eugene James Iacuone, to prosecute an action in Brooke County, for the recovery of damages for injuries sustained by him in an automobile accident. The contract of employment between Iacuone and Pietranton was in writing, but was not produced at the trial. The fee of Pietranton was upon a contingent basis, Pietranton claiming that he was to receive fifty per cent of any recovery, and Iacuone claiming that the contingent fee was to be thirty-three and one-third per cent of any recovery had without trial. Pietranton employed an attorney to assist in the prosecution of the action who, according to Pietranton, was to receive one-half of one-third of any recovery. The attorney so employed by Pietranton apparently understood that he was to have one-half of any fee received by Pietranton. The matters involved in the action were compromised, before any trial, and the amount received by Pietranton, on behalf of Iacuone, was $18,500. That sum was disbursed by Pietranton in the following manner: A check for $9,000.01 was drawn to the order of and delivered to Iacuone; a check for $3,083.33 was drawn to the order of and delivered to the attorney employed by Pietranton to assist in the prosecution of the action; a check for $500 was drawn to the order of a Doctor Harrington, the physician who treated Iacuone, and which check was delivered to Iacuone; the sum of $3,083.33 was deducted, to be applied on the attorney fee of Pietranton, as claimed by him; and, representing the balance of the $18,500, a check for $2,833.33 was drawn payable to Iacuone, and by him indorsed and delivered back to Pietranton. It is the fund represented by this check that is involved here. Iacuone claims that the fund was wrongfully withheld by Pietranton upon a false representation, made at the time of the delivery of the check, and before, to the effect that the sum was to be paid as a bribe to an attorney who represented one or more of the defendants in the action instituted in the name of Iacuone. Pietranton claims that the amount represented by the check was due him as the balance of the fifty per cent contingent fee. The evidence is in sharp conflict as to whether the check involved was delivered by Pietranton to Iacuone in Hancock County, as contended by Pietranton, or whether it was delivered in Brooke County at the residence of Iacuone. Other pertinent facts will appear in the discussion of the several propositions considered.

The first question to be considered relates to the motion of defendant to quash the notice of motion, made upon special appearance, on the ground that a copy thereof was not served upon defendant at least twenty days before the return day thereof. The copy was, in fact, served upon defendant thirteen days before the return day. Defendant contends that Code, 56-2-6, as amended, applies, and that by virtue thereof he was entitled to at least twenty days notice before the return day thereof. But the proceeding was prosecuted under Code, 30-2-13, quoted above, which contains no language relating to the service of any notice of motion. In such circumstances, Code, 56-2-5, governs. Its provisions are clear, and require only 'ten days' notice'.

A more serious question is raised by the action of the trial court in sustaining plaintiff's demurrer to a plea in abatement filed by defendant. The plea alleges, in effect, that defendant, at all times material, was a resident of Hancock County; that the criminal proceeding of State v. Pietranton, mentioned above, was pending in Brooke County; 'that on June 23, 1951, the defendant received a telegram from R. E. Hagberg, Prosecuting Attorney of Brooke County, West Virginia, reading as follows: 'Take notice that on June 26, 1951, at 9:30 A.M. an order will be tendered court for entry on proceedings had Thursday in State v. Pietranton and under Sections 2855 and 2858 of Code at which time you may appear if you see fit''; that defendant, pursuant to the notice so given, did appear before the Circuit Court of Brooke County, at which time the license of defendant to practice law was annulled and defendant was removed from the office of Prosecuting Attorney of Hancock County and 'that immediately after the aforesaid hearing on June 26, 1951, while defendant was leaving the Court House in Wellsburg, Brooke County, West Virginia the said notice of motion for judgment herein was served upon the defendant'. For the most part, at least, the evidence introduced at the trial on the merits establishes the truth of the facts alleged in the plea. Was defendant immune from service of the notice of motion for judgment in Brooke County, while attending legal proceedings therein, pursuant to the notice given by the Prosecuting Attorney of Brooke County?

Several decisions of this Court consider the question of immunity or privilege of a party or witness attending a legal proceeding in like or similar circumstances. In the recent case of State ex rel. Sivnksty v. Duffield, W.Va., 71 S.E.2d 113, this Court held: 'A person who voluntarily enters a county of which he is not a resident and who is arrested and held for a crime committed in such county, is not, by reason of such incarceration alone, immune from civil process served on him while he is so held.'

In State ex rel. Godby v. Chambers, 130 W.Va. 115, 42 S.E.2d 255, 256, it was held:

'1. A sentence for a misdemeanor is not process within the meaning of the immunity rule.'

'2. A person serving a sentence for a misdemeanor is not immune to the service of a summons in a civil proceeding.'

In the instant proceeding, it may be noted, the proceeding of State v. Pietranton had not been concluded. That proceeding was pending at the time of the service of the notice of motion upon defendant, for the purpose of appeal, as well as for the purpose of the hearing to be held pursuant to the notice given by the Prosecuting Attorney of Brooke County.

Courts are not in accord as to whether the rule is available to a resident of a state who appears to answer legal process in a county other than that of his residence. The question has been determined in this State. State ex rel. Godby v. Chambers, supra; Morris v. Calhoun, 119 W.Va. 603, 195 S.E. 341; Lang v. Shaw, 113 W.Va. 628, 169 S.E. 444. In the case last cited, the Court held: 'A party who is charged with a criminal offense in a county other than that in which he resides, and who was released on his own personal recognizance, and who, in pursuance thereof, appears and answers to the charge on the day set for trial, is not liable to be served in such county with process in a civil action until after a reasonable time has elapsed to enable him to return home.'

Of special significance in this case is the holding in Morris v. Calhoun, supra [119 W.Va. 603, 195 S.E. 341]. There the person claiming the privilege, a resident of Marion County, was involved in an automobile collision in Hampshire County. 'A charge of reckless driving, probably informal, was lodged against the petitioner by a trooper of the Department of Public Safety, and he was cited by such authority to appear in Hampshire county * * *.' At a later date, in answer to the citation, he returned to ...