Civil Procedure - Tickle v. Barton

Civil Procedure Tickle v. Barton -Caption:  T v. Barton S.C. Appeals of WV (1956) -Parties:  P = Richard Tickle (infant) D = Raymond Barton (Austinville, VA) & Lawrence Coleman -Facts:  Tickle’s friend is suing on his behalf for action of trespass  Coleman is accused of operating Barton’s motor vehicle on private property, not public highway  Plaintiff is suing both parties for personal injuries caused by negligence  P’s attorney calls Barton (w/o revealing identity) to invite him to a banquet w/o authorization  P’s attorney calls/hires ppl call Barton’s home & wife notifies he is headed to banquet  -D’s attorney asks P’s rep. & denies doing, hiring, or having any knowledge of calls -Procedure:  -Tried serving Barton under statute relating nonresident driver actions against or by while validity of service was still undecided at time instant decision rendered  -P’ attorney causes alias process (retry process when 1st fails) to serve Barton in McDowell County by sheriff during Barton’s appearance at banquet  -Barton uses abatement to claim alias process unfair, “tricked” to come to McDowell County  -Circuit court overrules demurrer of plaintiff  -Key = B4 invite, Barton did not know about the event or intend to go -Issue:  If P’s attorney lied to D in order to have him show up at a certain location for purpose serving him w/ summons for pending lawsuit, shall service be effective? -Rule/Holding:  Service shall NOT apply to party if other party, his agent, or someone on behalf is using trickery/deceit to mislead party  Court has jurisdiction but will choose not to try if lawful act is accomplished by unlawful means (tricking someone to be served specific location = ex) -Disposition:  SC affirms circuit court overruling demurrer was correct -Dissenting:  Does NOT disagree with the rule of law laid down, but that the facts presented bring this case w/in influence of this rule  Believes case is not fraud, but failure to taking advantage situation  Points to fact Barton already knew of case and questioning trial  Action actually occurred in McDowell County where usually triable *Abatement: not stating right to relief, but that P needs to retry cuz made procedural error *Demurer: object that opponent's point irrelevant/invalid, while granting factual basis of point Class Notes: Tickles v Barton -Agent = Someone who acts on behalf of another (ex = employee) -Principal = person who they are working on behalf of -Only sued Barton (strategically) -Deter employers to hire unreliable employees and motivate employers to take measurement to create safe work environment (only work certain amount of hours before break) -Writ of certori? = Plaintiff can sue employer if employee is negligent while working in scope of employment -Forcing a business to internalize cost of business (instead of imposing cost on the world externalizing cost of operation)  removes incentive to allow the action to happen again T v C (WV) (WV) B (VA) -This suit would be a problem in federal court (merits of suit is NOT issue of this case though) -Issue of suit = about service of process (how complaint is brought to D’s attention, means of notifying D of being sued) -Initially complaint filed over child getting hurt, but higher court is focusing on service of process *Alias process = “a second bite at the apple”, 2nd summons when 1st was ineffective -Had been some attempt to notify Barton, Barton claims it wasn’t correct, so Tickle’s attorney summons a different way using alias process instead of waiting for court -P’s argument = You can’t induce someone into the premises for service of process -Uses plea in abatement to present his objection of means of service of process to court Plea in abatement = attacking time, place, or mode to obtain jurisdiction (now motions to dismiss) -Tickle’s attorney uses demurrer -Demurrer = Legal way of saying “so what” -Objection to relevance, not to the validity of the facts themselves -Didn’t say I didn’t call him up, but who cares -Effectively acknowledges the facts of other side (and assume they are right) -Want an appeal, must wait until claim is finalized (D owes this amount to P) -Inter-lockage order = can appeal during suit, don’t have to wait until claim resolved -Barton’s fears = If he doesn’t know service of process was valid then may have to change travel habits, more procedural ranking = more expensive, Tickle could lose to Barton but then go after Coleman and found guilty under negligence & turn around to sue Barton in VA again -Plaintiff usually pays by contingency = I will bear all the risk of the trial if we lose, but win then I get % -Defendant can’t usually cuz no payout, so pay hourly -SCOA says demurrer is wrong, it does matter since you can’t trick D into being in area for summons -Now case remanded back to trial court to gather facts of if Tickle’s attorney did make the call, etc. (wasn’t known when in SC) -Example of why sometimes states may allow for immediate appeal (unfair to D paying hourly, can be very ineffective if later sent to appeals court to be sent back to find facts in trial court) -If something will defeat jurisdiction immediately, then might want COA to decide right away before another entire trial -Like Tickle, about scope/process of personal jurisdiction for states. Capron is about subject matter jurisdiction.