Lang v. Shaw, (No. 7612)

• Citation: 113 W.Va. 628
• Decision Date: 09 May 1933
• Docket Number: (No. 7612)
• Court: Supreme Court of West Virginia
• Parties: Lee J. Lang, et at. v. Honorable Harry Shaw, Judge, etc.Deeided

113 W.Va. 628

Lee J. Lang, et at.

v.Honorable Harry Shaw, Judge, etc. Deeided

(No. 7612)

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1933.

May 9, 1933.

Process

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.

Litz, Judge, absent.

Original prohibition proceedings by Lee J. Lang and others against Harry Shaw, Judge of the Circuit Court of Marion County, and others.

Writ awarded.

Robinson & Robinson, and J. Harper Meredith, for petitioners.

L. C. Musgrave, for respondents.

Woods, Judge:

Lee J. Lang and Hamilton Lang, father and minor son, respectively, both residents of Harrison county, seek a writ prohibiting the judge of the circuit court of Marion county from proceeding further in a certain action of trespass on the case in which Leota Beryl Arnett. an infant, who sues by Dana C. Arnett, her next friend, is plaintiff and petitioners are defendants, on the theory that Hamilton Lang was immune from service of civil process at the time of the service upon which the circuit court assumed jurisdiction of the case.

The question of jurisdiction was raised by pleas in abatement, which charged, in substance, that Hamilton Lang had had an automobile accident while passing through Eivesville, Marion, county; that he was arrested and shortly thereafter released by the mayor of the town of Rivesville on a personal recognizance, to return on a day certain, to answer a criminal charge; that he did return in pursuance of his agreement; that while in the mayor's office, he was served with process in the above-mentioned case, which grew out of the accident aforesaid. Demurrers to each of the pleas were sustained.

This court held in Whited v. Phillips, 98 W. Va. 204, 126 S. E. 916, that: "A non-resident of West Virginia, who voluntarily and without compulsion of law, submits himself to the jurisdiction of a state court, in answer to an indictment therein against him, and who is not at the time a fugitive from justice, is privileged while attending court from service of process in a civil suit." And this rule, very logically, should extend to a defendant who, charged with a criminal offense in a county other than that in which he resides, appears and answers to the charge on the day set for trial. Lingemann v. Judge Macomb, Circuit Judge, 247 Mich. 597, 226 N. W. 259; Jacobson v. Wayne, Circuit Judge, 76 Mich. 234, 42 N. W. 1110; Palmer v. Rowan, 21 Neb. 452, 32 N. W. 210.

The sole question, therefore, is whether or not the petitioner, Hamilton Lang, was voluntarily within the county of Marion, as contemplated by the decisions.

Respondents take the position that Hamilton Lang was not voluntarily present before the mayor, in view of the fact that he had been taken into custody and released on his own personal recognizance, citing Whited v. Phillips, supra; Neto- graph Mfg. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962.

In the Whited case, Judge Hatcher, speaking for the court, pointed out that Phillips was not subject to extradition, as contended for by the plaintiff, and that his appearance was voluntary. So, the respondents in the instant case, call attention to the fact that Hamilton Lang was actually taken into custody of the mayor of Rivesville, and released on personal recognizance, and cites the Netograph case. It was held in the last-mentioned case, that: "A non-resident who is arrested on a criminal charge while temporary in the state, and who is held for trial and who gives bail for his appearance for trial, and who subsequently comes into the state to attend his trial, is constructively in the custody of...