Thursday, February 7, 2013

Tickle v. Barton case brief

Tickle v. Barton
142 W. Va. 188

SYNOPSIS: Plaintiff, an infant injury victim suing by his next friend, appealed a judgment of the Circuit Court of McDowell County (West Virginia), which overruled the victim's demurrer to the amended plea in abatement of defendant alleged tortfeasor, a car owner, finding that process had been served upon the owner by trickery. The trial court then certified to the court the question of the legal sufficiency of the amended plea in abatement.

-The victim sued to recover damages for injuries he received from the owner's vehicle while driven by another defendant.
-The owner, who lived in Virginia, 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, he challenged the second service as well, contending that the victim's attorney had tricked him into going to the banquet.
-The owner alleged that the victim's attorney had called and invited him to the banquet but had not disclosed his identity, although the owner asked, saying only that he was calling on behalf of the banquet sponsors.

-The trial court overruled the victim's demurrer and certified to the court the question as to whether the allegations of the amended plea in abatement were sufficient to render invalid the service of process.

The court concluded that the trial court was correct, finding that 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.

-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.

CONCLUSION: The court affirmed the trial court's overruling of the victim's demurrer to the owner's second amended plea in abatement.

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