Tickle v. Barton
| Decision Date | 13 November 1956 |
| Docket Number | No. CC831,CC831 |
| Citation | 95 S.E.2d 427,142 W.Va. 188 |
| Parties | Richard TICKLE, an infant, etc., v. Raymond BARTON et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
When a person who resides outside the jurisdiction of a court and, for that reason, is beyond the reach of its process, is inveigled, enticed or induced, by fraud, trickery, artifice or wrongful device for which a party is responsible by virtue of the action of his attorney or of any other person for and in his behalf, to come within the jurisdiction of the court for the purpose of enabling such party to obtain personal service of process upon such nonresident person in an action brought against him in such court, service of process which results from such fraud, trickery, artifice or wrongful device is invalid and does not justify the exercise of jurisdiction by such court over the person so severed with process; and upon proof that service of process has been so obtained, it will be vacated and set aside.
Frank L. Smoot, Sanders, Smoot & Sanders, Bluefield, Strother & Christie, Welch, for defendants.
The plaintiff, Richard Tickle, an infant, who sues by his next friend, instituted this action of trespass on the case in the Circuit Court of McDowell County in March, 1955, to recover damages from the defendants, Raymond Barton, a resident of Austinville, Virginia, and Lawrence Coleman, for personal injuries inflicted upon him by a motor vehicle, owned by the defendant Raymond Barton and operated by his agent the defendant Lawrence Coleman, on private property instead of a public highway, in that county which the plaintiff alleges were caused by the negligence of the defendants.
Original process in the case was served upon the defendant Barton through the Auditor of West Virginia under the provisions of Chapter 47, Acts of the Legislature, 1937, Regular Session, relating to actions by or against nonresident operators of motor vehicles involved in accidents on any public street, road or highway in this State. The defendant Barton challenged the validity of such service upon him by that method by plea in abatement on the ground that the accident in which the plaintiff was injured did not occur upon a public highway. By general replication the plaintiff joined issue on the plea in abatement which was pending and undetermined on December 6, 1955.
On December 5, 1955, one of the attorneys for the plaintiff caused an alias process to be issued against the defendants returnable to January rules, 1956, and delivered it to a deputy sheriff for service upon the defendant Barton in McDowell County; and in the evening of December 6, 1955, that process was served by the deputy upon the defendant Barton in person at the War Junior High School in the town of War in that county where he appeared to attend a banquet which was held there at that time.
By his amended plea in abatement No. 2, the defendant Barton challenged the validity of the service of the alias process upon him on the ground that he had been induced to come to that place in McDowell County by trickery, artifice and deceit practiced upon him by the attorney for the plaintiff.
The circuit court overruled the demurrer of the plaintiff to the amended plea in abatement and by order entered June 4, 1956, certified its ruling upon the demurrer to this Court on the joint application of the plaintiff and the defendant Barton.
After reciting the prior proceedings in this case, the amended plea in abatement alleges in substance that after procuring alias process for the purpose of causing it to be served upon the defendant Barton in McDowell County, and inducing him to come to the Junior High School in the town of War in that county, an attorney representing the plaintiff in this action, in the evening of December 5, 1955, called by telephone the defendant Barton at his home in Austinville, Virginia, and wrongfully and deceitfully represented that, in behalf of the sponsors of a banquet honoring a championship high school football team to be held at the Junior High School in the town of War, in McDowell County, at six thirty o'clock in the evening of December 6, 1955, he extended an invitation to the defendant Barton, whose son had been a member of an earlier football team of that school, to attend the banquet; that during that telephone conversation between them the attorney, though requested to do so by the defendant Barton, did not disclose his identity except to say that he called him in behalf of the sponsors to extend the defendant Barton a special invitation to attend the banquet; that the defendant Barton before being so invited did not know that the banquet would be held and did not intend to attend it; that he did not know or suspect the identity of the attorney, or realize that the telephone call was a trick or device to entice, induce and inveigle him to come into McDowell County to be served with process in this action; that the attorney was not connected with any of the sponsors of the banquet and was not authorized by them to invite the defendant Barton to attend it; that the attorney called the defendant Barton and invited him to the banquet solely for the purpose of tricking, deceiving and inveigling him to come to the town of War in order to obtain personal service of the alias process upon him in McDowell County; that the defendant Barton, believing that the invitation was extended in good faith, by a person authorized to extend it, and not suspecting the real purpose of the telephone call, accepted the invitation and informed the attorney that he would be present at the banquet and on December 6, 1955, left Austinville, Virginia, and went to the town of War with the intention of attending it; that, when he entered the high school where the banquet was held during the evening of December 6, 1955, he was served by the deputy sheriff with the alias process which the attorney had caused to be issued on December 5, 1955; that the presence of the defendant Barton in the town of War, where he was served with the alias process, was procured by trickery, deceit and subterfuge practiced upon him by the attorney for the plaintiff; that if such trickery, deceit and subterfuge had not been so practiced upon him the defendant Barton would not have entered McDowell County and process in this action could not have been served upon him in that county; that other than the service of original process through the Auditor and the service of the alias process in McDowell County on December 6, 1955, there has been no service of process upon him in this action; that the service of the alias process upon the defendant Barton, having been procured by trickery, deceit and subterfuge which was not realized or suspected by him, is, for that reason, null and void and of no force or effect and does not confer upon the Circuit Court of McDowell County jurisdiction of the person of the defendant Barton in this action.
The amended plea in abatement also alleges, on information and belief, that after the defendant Barton had left his home in Austinville, Virginia, to attend the banquet, the attorney for the plaintiff, during the afternoon of December 6, 1955, made a telephone call to the residence of the defendant Barton, or caused some other person to make such call, and inquired of the wife of the defendant Barton if he intended to attend the banquet and was informed by her that he had left his home to attend it and was then on his way to the town of War for that purpose.
The amended plea in abatement further avers that after the defendant Barton had been served with the alias process his attorney inquired of the attorney for the plaintiff if he had made either of the two telephone calls or had procured some person to make the second telephone call and that the attorney for the plaintiff denied that he had made, or procured any person to make, either of the foregoing telephone calls, and denied that he had any knowledge whatsoever of either of them.
The question certified to this Court for decision is whether the allegations of the amended plea in abatement, which insofar as they are material and are well pleaded must be considered as true upon demurrer, are sufficient to render invalid the personal service of process upon the defendant Barton in McDowell County because his presence in that county at the time of such service of process was induced or procured by trickery, artifice, or deceit practiced upon him by an attorney representing the plaintiff in this action.
The precise question presented by the certificate of the circuit court has not been determined in any prior decision of this Court. It has, however, been discussed in authoritative texts and treatises and considered and determined by appellate courts in other jurisdictions.
In Blashfield Cyclopedia of Automobile Law and Practice, Permanent Edition, Vol. 9A, Section 5919, the text contains these provisions: In 42 Am.Jur., Process, Section 35, the general principle is stated thus: ...
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...will refuse to exercise its jurisdiction in favor of a party that has used unlawful means to obtain service"); Tickle v. Barton, 142 W.Va. 188, 95 S.E.2d 427, 432-33 (1956) (service of process obtained by fraud or trick is invalid and does not justify the exercise of jurisdiction over a per......
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Rutherford v. Rutherford, 1
...jurisdiction by telling her that an ailing grandmother, who was not supposed to live, wanted to see the child); and Tickle v. Barton, 142 W.Va. 188, 95 S.E.2d 427 (W.Va.1956) (no personal jurisdiction when plaintiff's attorney tricked the defendant into attending a championship football ban......