Tickle v. Barton

142 W. Va. 188, 95 S.E.2d 427 (1956)

 

RULE:

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, artifices 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 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 served with process; and upon proof that service of process has been so obtained, it will be vacated and set aside.

FACTS:

Appellant victim sued to recover damages for injuries he received from appellee's vehicle while driven by another person. Appellee challenged the initial service of process. While the challenge was pending, he was served again when he attended a banquet within the trial court's jurisdiction. In an amended plea in abatement, appellee challenged the second service as well, contending that appellant's attorney tricked him into going to the banquet. Appellee alleged that appellant's attorney called and invited him to the banquet but had not disclosed his identity, although appellee asked, saying only that he was calling on behalf of the banquet sponsors. Appellant challenged the judgment of the trial court, which overruled appellant's demurrer to the amended plea in abatement of appellee, finding that process had been served upon the owner by trickery. The appellate court affirmed the trial court’s overruling of appellant's demurrer to appellee's second amended plea in abatement.

ISSUE:

Were the allegations of the amended plea in abatement, which insofar as they were material and were well pleaded should be considered as true upon demurrer, sufficient to render invalid the personal service of process upon appellee because his presence in that county at the time of such service of process was induced or procured by trickery, artifice, or deceit?

ANSWER:

Yes.

CONCLUSION:

It appeared from the material allegations of the amended plea in abatement that appellee was induced to come into the banquet by artifice practiced by the attorney for appellant, for which appellant was in law responsible, to enable him to obtain personal service in that county of process upon appellant in the pending action. The manner in which such service of process was procured and accomplished rendered the service of alias process upon appellant invalid and did not justify the exercise by the trial court of jurisdiction over him in the action. Where service of process was made by fraud or trickery, it was invalid and did not justify the exercise of jurisdiction by the trial court over the person so served, and service of process so obtained had to be vacated and set aside.

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