Fischer v. Munsey Trust Co.

44 App. D.C. 212 | D.C. Cir. | 1915

Mr. Justice Eobb

delivered the opinion of the Court':'

In this jurisdiction the practice is firmly established, where the question of service may be determined as matter of law, to raise it by motion to quash. Ricketts v. Sun Printing & Pub. Asso. 27 App. D. C. 222; Ferguson Contracting Co. v. Coal & Coke R. Co. 33 App. D. C. 159; Toledo Computing Scale Co. v. Miller, 38 App. D. C. 237; Wendell v. Holland America Line, 40 App. D. C. 1. The present case, however, presents a different question, for the reason that the facts are disputed. Under see. 70 of the Code [31 Stat. at L. 1200, chap. 854] issues of fact in civil cases may be tried and determined by the court “whenever the parties or their attorneys of record file with the'clerk a stipulation in writing waiving a jury.” Appellant’s motion to quash amounted to nothing more than a presentation of certain alleged facts, and a request for a ruling upon the question of law arising from those facts. Appellee thereupon filed affidavits in opposition to the motion, but no stipulation was entered into by the parties that the court should determine any issue of fact. The sole question for determination was whether appellee’s opposing affidavits raised an issue of fact. The court, evidently of opinion that they did,' necessarily overruled the motion to quash. Nothing else could have been done, for the court was without jurisdiction to determine the issue of fact. That issue had not been submitted to him. Thereupon two courses were open. Either the parties could have entered into a stipulation submitting this issue of fact to the court, or appellant could raise it by plea in abatement. He-elected the latter, as under that plea he would be entitled to a trial by jury. The plea was filed in about thirty days, and, as the summer recess then was on, we cannot say that there was undue delay. We therefore rule that the court erred in striking out the plea in abatement.

As our conclusion necessitates further proceedings, perhaps we should say that, in our view, if the allegations of appellant are found to be true, the service should be quashed. “If a person is induced by false representations to come within the jurisdiction of á court for the purpose of obtaining service of process upon him, and process is there served, it is such an abuse that the court will, on motion, set the process aside.” Fitzgerald & M. Constr. Co. v. Fitzgerald, 137 U. S. 98, 105, 34 L. ed. 608, 611, 11 Sup. Ct. Rep. 36. See also: Frawley v. Pennsylvania Casualty Co. 124 Fed. 259; Cavanagh v. Manhattan Transit Co. 133 Fed. 818; Toof v. Foley, 87 Iowa, 8, 54 N. W. 59. A court of justice ought not and will not permit a party to profit by such artifice. If appellant was induced, by the representations of appellee, to come within this jurisdiction for the purpose of a conference having for its object “an amicable settlement,” service upon him was an act of bad faith amounting to misrepresentation.

The judgment is reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded.