Byler v. Jones, 22 Mo. App. 623

Byler v. Jones

22 Mo. App. 623 | Mo. Ct. App. | 1886

Hall, J.

It is provided by section 3481, Revised Statutes, that suits by summons shall be brought “when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found.”

The defendant complains of the action of the circuit court in refusing the declarations of law asked by him. He insists that such action of the court was erroneous. *629He contends that “the statute recited certainly does not extend to any cases, in that regard, other than those in which parties, voluntarily, and of their own volition, go into the county wherein the plaintiffs reside, and thus submit themselves to the jurisdiction of the courts of such county.”

The action of the court in that respect was proper. The statute does not support defendant’s contention. We can see no reason why one, lawfully arrested in another county, and takeu from that county into the county within which the plaintiff resides, provided that where the arrest was procured by the plaintiff, it was procured rightfully, may not be served with a summons in a suit brought by the plaintiff. Against the right to make such service we have seen no authority. We have carefully examined and considered the authorities cited by defendant; they do not support his contention. One under lawful arrest is not on that account exempted from service of civil process.

It has been frequently held that a summons cannot be served upon a defendant, a non-resident of the state, while attending court in that state as a party. Mathews v. Tufts, 87 N. Y. 570, and cases cited. This is so held on the ground that it is necessary for the due administration of justice. This reason does not apply to a case in which the defendant is arrested on a criminal charge, and taken into a foreign state to answer such charge.

II.

It is a well established rule, sometimes said to be an elementary rule, that, “if a person is induced by false representations to come within the jurisdiction of a court for the purpose of obtaining service of process upon him, and process in an action brought against him in such court is there served, it is an abuse of legal process, and, the fraud being shown, the court will, on motion, set aside the service.” Townsend v. Smith, 47 Wis. 626; Byler v. Jones, supra; Bank v. Knox, 47 Mo. 334.

*630The principle upon which the rule is based is, that “a valid and lawful act cannot be accomplished by any unlawful means; and whenever such unlawful means are resorted to, the law will interpose and afford some-suitable remedy, according to the nature of the case, to-restore the party injured by these unlawful means, to his rights.” Per Shaw, C. J., in Ilsbey v. Nichols et al., 12 Pick. 270. The rule is simply the application of this principle to one set of facts. But the principle has been so applied in the various adjudicated cases, as to lead Chief Justice Shaw to say, in Ilsbey v. Nichols, supra, that the authorities support the broad proposition laid down by Lord Holt, that “no lawful thing founded upon a wrongful act, can be supported.” Lutlin v. Bemie, 11 Mad. 50.

If the service of the summons, in this case, upon the defendant, was obtained by the wrongful act of the plaintiff, whether the wrongful act was committed for the purpose of obtaining such service or not, the service of the summons should be vacated and set aside. The question is rot, whether the act was committed for the purpose of obtaining service of the summons, but is, was the act wrongful and unlawful? Except in so far, of course, as the purpose with which the act was done, of obtaining service of the summons, may render the act wrongful. But where the act was wrongful without regard to such purpose, it is immaterial whether it was or was not committed with such purpose. In Townsend *. Smith, supra, the court said: “It was suggested, but scarcely argued, by the learned counsel for the plaintiff, that because his client committed the fraud for the sole purpose of getting the defendant within this state, so that he might be arrested on criminal process, this action being the result of an afterthought, the service of the summons should be upheld. The suggestion is hardly worthy of notice. The defendant was within the jurisdiction of the court by means of the fraud of plaintiff; and no act of his, *631'which that fraud enabled him to accomplish, can be allowed to stand, whether such act was premeditated ox not. The court will not permit him to utilize his fraud for any purpose.”

If the plaintiff, in procuring the arrest of the defendant acted maliciously and without probable cause, he acted wrongfully and unlawfully; and the service oi the summons in this case, obtained by means of such act, cannot be upheld. All the evidence showed that the defendant, upon a hearing before the justice of the peace, was discharged. “The discharge of the defendant, by the committing magistrate, was evidence goinS to show the want of probable cause, and from that malice also might be inferred.” Sappington v. Watson, 50 Mo. 84.

We think, therefore, that the circuit court erred in giving the declara iton of law for plaintiff. The cour should have passed upon the question as to whether the plintiffs’ act in procuring the arrest of d efendant was ongful, that is, whether it was done mandali, nocisly at without probable cause. This question the court did not pass upon, but ignored.

For this reason, the judgment is reversed and the cause remanded.

Ellison, J., concurs ; Philips, P. J., concurs in the result.