Thomas v. Blackwell

• Citation: 1935 OK 648,172 Okla. 487,46 P.2d 509
• Decision Date: 04 June 1935
• Docket Number: Case Number: 23644
• Parties: THOMAS v. BLACKWELL
• Court: Supreme Court of Oklahoma

1935 OK 648

46 P.2d 509

172 Okla. 487

THOMAS v. BLACKWELL

Case Number: 23644

Supreme Court of Oklahoma

Decided: June 4, 1935

Syllabus

¶0 1. PROCESS - Immunity From Service of Civil Proccess in Another County - Nonresident Attending Court as Defendant in Criminal Case.

A nonresident who is compulsorily brought into a county other than his residence, to attend court in answer to a criminal charge pending against him, is immune from service of civil process, for a reasonable time, while going to attending at, or returning from court, in the furtherance of the administration of justice and as a matter of public policy, when timely application is made to claim such immunity from service.

2. SAME - Motion to Quash Service of Summons Improperly Denied.

Record examined: Held, that the cause should be, and the same is, reversed and remanded, with directions to sustain the motion to quash.

Appeal from District Court, Washita County; E.L. Mitchell, Judge.

Action by W.M. Blackwell against J.R. Thomas and R.C. Truitt. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Pruett & Wamsley and A.R. Ash, for plaintiffs in error.

E.N. Sasseen and Massingale, Duff & Bailey, for defendant in error.

McNEILL, C. J.

¶1 This action involves the privilege of a nonresident defendant in a criminal action to claim exemption and immunity from service of summons in a civil action when arrested and brought by compulsion to attend a court outside of the territorial jurisdiction of his residence, to answer a criminal charge of driving an automobile while under the influence of intoxicating liquor. The civil action and the criminal action grow out of the same facts involved in an automobile accident.

¶2 In this case there is no controversy in respect to the essential facts. On February 23, 1931, plaintiff, while driving a car on State Highway No. 41, within the city of Cordell, Washita county, sustained personal injuries and damages to his car as the result of a collision with an automobile driven by defendants. After the accident the defendants proceeded to their respective residences, in Carnegie, Caddo county. On March 19, 1931, plaintiff filed a criminal complaint before the justice of the peace in the New Cordell district in Washita county, charging defendants with the commission of the public offense of driving a motor vehicle at the time of said accident while under the influence of intoxicating liquor. Plaintiff, on the same day that the criminal complaint was filed, also filed in the district court of said county an action against said defendants for damages. Warrants and summons were issued on the same day that the complaint and petition for damages were filed, and they were received on that day by the sheriff of Washita county. The defendants were arrested on March 21, 1931, at Carnegie, Caddo county, and were taken before said justice of the peace in Washita county for arraignment. After the defendants were arraigned they gave bond for their appearance. Immediately after their appearance, bonds were accepted, and, while In the office of said justice of the peace, they were served with summons in the case at bar. Said defendants promptly and timely filed separate motions to quash said summons, narrating in said motions the aforesaid facts, in substance, and, by reason thereof, attacked the jurisdiction of said court over their persons upon the ground that they were not subject to service in a civil action in Washita county while they, as suitors and as defendants, were attending, involuntarily, said court of the justice of the peace, and for that reason the service attempted to be obtained against them in said civil action was illegal.

¶3 The trial court overruled this motion to quash. The defendants excepted thereto and thereafter filed their separate answers, objecting to the Jurisdiction over their persons upon the same grounds which they had set forth in said motions to quash, and denied generally and specifically in said answer all the material allegations contained in the petition of plaintiff. In addition thereto, said defendants interposed a plea of contributory negligence.

¶4 The case was tried to a court and jury, which resulted in a verdict for the plaintiff in the sum of $2,000 as actual damages.

¶5 Seven specifications of error are urged by defendants. We consider only the jurisdictional question presented in the motion to quash and renewed in the answer of the defendants.

¶6 Prima facie, this record does not smack of bona fide intentions. The plaintiff in the civil action is also the prosecutor in the criminal proceedings. The service of the summons in the civil action was received by the sheriff on the same day that the warrant in the criminal action was issued. The civil and criminal proceedings were instituted on the same day. These facts presumptively negative the theory that the bringing of the civil action and the commencement of the criminal proceedings were any mere coincidence. Such facts, moreover, are strongly persuasive of a warrantable conclusion that there has been an abuse of criminal proceedings by a private litigant for the purpose of subjecting a nonresident to civil liability. Under such circumstances, an effective bar should be placed upon a practice which seeks the misuse of power to acquire jurisdiction over a person under the guise of criminal proceedings for ultimate private gain.

¶7 Under section 5064, R. L. 1910 (603, O. S. 1921), immunity has been granted to witnesses. We have no statutory provisions granting immunity to suitors. In the case of Wells v. Shriver, 81 Okla, 108, 197 P. 460, this court said:

"The Code of Civil Procedure in this state originated in New York; Ohio adopted it from New York; Kansas adopted it from Ohio; and Oklahoma adopted it from Kansas. Therefore, the decisions of these states are very persuasive."

¶8 In the case of Compton, Ault & Coe v. Wilder, 40 Ohio St. 130 (1883), Wilder, a citizen of Pennsylvania, was extradited from that state to be prosecuted by the state of Ohio for an alleged crime. Compton, Ault Coe had filed a complaint with a magistrate in the state of Ohio charging Wilder with the crime of having obtained a promissory note of said company by false pretenses. The company made application to the Governor of Ohio for the extradition of Wilder. The Governor of Pennsylvania, upon the requisition of the Governor of Ohio issued at the request of said company, surrendered Wilder to the state of Ohio. After the extradition had been made, Wilder was taken before the magistrate and gave bond for his appearance for the following day. Wilder appeared pursuant to his bond and entered into a recognizance to appear at the first day of the next term of court. After bond had been given, Wilder was released from custody and, while waiting for the next train to leave for his home, Compton, Ault & Coe commenced a civil action against him upon the alleged indebtedness arising out of the note mentioned in the criminal prosecution and had a summons and order of arrest served upon him. He promptly asked the court to set aside the service of summons and order of arrest and to discharge him from custody.

¶9 In that case the question of privilege from service was fully discussed. It was held that the service of a summons and an order of arrest in a civil action, brought by said complainant against the citizen of Pennsylvania after he had entered into a recognizance to appear at the next term of court, and before conviction, and before he had an opportunity to return to his home, was rightfully set aside, and that Wilder, having been brought by force into Ohio for a specific purpose, should not be deprived of any rights except such as he had forfeited by the commission of the alleged crime, and that it was his right to be sued in the jurisdiction in which he was domiciled unless he voluntarily came into the jurisdiction of Ohio.

¶10 In that case the court said:

"To secure a service of summons, in a civil action like the one we are considering, is not one of the objects intended to be accomplished by this grant of power (extradition). In a country like ours this power is useful and indispensable. It was intended, however, to subserve great public interest. When otherwise used it becomes an evil.

"The temptation to make it subservient to private interests is great. This weapon, intended alone to secure the punishment of crime, is frequently resorted to, to enforce the collection of private debts or to remove a citizen from his home into a foreign jurisdiction that he may there be served in a civil action.

"This growing evil has been seen and appreciated by the chief executives of many states, and to guard against it rules and regulations are being adopted which may make the extradition of an alleged fugitive, in a proper case, extremely difficult. It has been recognized by both the executive and legislative branches of our government, as is shown by their former action.

"The judicial should be as swift in putting the seal of condemnation upon this abuse as have been the other branches of the government. The certain remedy to prevent its growth is, to deprive all persons who participate in the misuse of the power to extradite persons alleged to be fugitives from justice of the fruits resulting from such participation."

¶11 In the case of Eaton v. Eaton (Kan.) 243 P. 1040, the defendant, a resident of Texas, went to the state of Kansas to visit his children, the husband and wife having separated, and the wife having acquired a domicile in Kansas. While visiting the children in Independence, Kan., the defendant was arrested on complaint for nonsupport of the children and he gave bond for appearance at the trial. Thereafter, on the day of the trial, defendant was personally served with a summons in an action for a divorce and alimony which had been filed prior to the date of the trial on the criminal charge. In that case the defendant permitted a...