State ex rel. Poole v. Dorroh

• Decision Date: 13 March 1975
• Citation: 532 P.2d 794,271 Or. 410
• Parties: STATE of Oregon ex rel. Mike POOLE, Plaintiff, v. Jeff D. DORROH, as Judge of the Circuit Court of the State of Oregon for Malheur County, Oregon, Defendant.
• Court: Oregon Supreme Court

Page 794

532 P.2d 794

271 Or. 410

STATE of Oregon ex rel. Mike POOLE, Plaintiff, v. Jeff D. DORROH, as Judge of the Circuit Court of the State of Oregon for Malheur County, Oregon, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 5, 1975.

Decided March 13, 1975.

Carl Burnham, Jr., of Yturri, O'Kief, Rose & Burnham, Ontario, argued the cause and filed briefs for plaintiff.

F. J. Yraguen, Vale, Dist. Atty. for Malheur County, argued the cause and filed a brief for defendant.

HOWELL, Justice.

This is an original proceeding in mandamus to require the defendant judge of the Circuit Court for Malheur County to quash the service of a citation and petition in a filiation proceeding.

The petitioner in the filiation proceeding, after alleging that she resides in Ontario, Oregon, and is the mother of a child born out of wedlock, alleges that the father now resides in Boise, Idaho, and the child was conceived in June, 1969. The prayer of the petition asks that the defendant father be required to appear and show cause why he should not be found to be the father and to pay support.

The defendant, who was personally served in Idaho, appeared specially and filed a motion to quash the service of the petition and citation on the grounds that he is not a resident of Oregon and was not served within Oregon. The trial court denied the motion to quash and defendant in the filiation proceeding filed a petition for an alternative writ of mandamus, which we allowed.

Our statute, ORS 14.035, commonly known as the 'long-arm' statute, states in pertinent part:

'(1) Any person, firm or corporation whether or not a citizen or a resident of this state, who, in person or through an agent, does any of the actions enumerated in this subsection, thereby submits such person and, if an individual, his personal representative to the jurisdiction of the courts of this state, as to any cause of action or suit or proceeding arising from any of the following:

'* * *.

'(b) The commission of a tortious act within this state;

'* * *.'

The defendant judge herein contends that the failure of the father to support his child constitutes a 'tortious act' committed within this state. A secondary question is whether the act of intercourse in conceiving the child is a tortious act committed within this state.

The few courts that have passed upon the question of whether an act of a intercourse resulting in conception of a child or the failure to support the child constitutes a 'tortious act' within the state are divided upon the question.

The Supreme Court of Colorado has held that an act of sexual intercourse between two consenting adults does not constitute a tortious act for the purpose of the Colorado long-arm statute, A.R.B. v. G.L.P., Colo., 507 P.2d 468 (1973). To the same effect is the decision of the Family Court of the City of New York, Queens County, in Anonymous v. Anonymous, 49 Misc.2d 675, ...