169 S.E. 444 | W. Va. | 1933
Lee J. Lang and Hamilton Lang, father and minor son. respectively, both residents of Harrison county, seek a writ prohibiting the judge of the circuit court of Marion county from proceeding further in a certain action of trespass on the case in which Leota Beryl Arnett, an infant, who sues by Dana C. Arnett, her next friend, is plaintiff and petitioners are defendants, on the theory that Hamilton Lang was immune from service of civil process at the time of the service upon which the circuit court assumed jurisdiction of the case.
The question of jurisdiction was raised by pleas in abatement, which charged, in substance, that Hamilton Lang had had an automobile accident while passing through Rivesville, Marion, county; that he was arrested and shortly thereafter released by the mayor of the town of Rivesville on a personal *629 recognizance, to return on a day certain, to answer a criminal charge; that he did return in pursuance of his agreement; that while in the mayor's office, he was served with process in the above-mentioned case, which grew out of the accident aforesaid. Demurrers to each of the pleas were sustained.
This court held in Whited v. Phillips,
The sole question, therefore, is whether or not the petitioner, Hamilton Lang, was voluntarily within the county of Marion, as contemplated by the decisions.
Respondents take the position that Hamilton Lang was not voluntarily present before the mayor, in view of the fact that he had been taken into custody and released on his own personal recognizance, citing Whited v. Phillips, supra; Netograph Mfg.Co. v. Scrugham,
In the Whited case, Judge Hatcher, speaking for the court, pointed out that Phillips was not subject to extradition, as contended for by the plaintiff, and that his appearance was voluntary. So, the respondents in the instant case, call attention to the fact that Hamilton Lang was actually taken into custody of the mayor of Rivesville, and released on personal recognizance, and cites the Netograph case. It was held in the last-mentioned case, that: "A non-resident who is arrested on a criminal charge while temporarily in the state, and who is held for trial and who gives bail for his appearance for trial, and who subsequently comes into the state to attend his trial, is constructively in the custody of the law, and is within the jurisdiction by compulsion, and not voluntarily in aid of the administration of justice, and he is not *630 exempt from service of process in a civil suit while remaining in the state after his acquittal for a proper purpose and not unreasonable in duration."
We note, however, that the rule in the Netograph case was disapproved in the case of Michaelson v. Goldfarb,
The reasoning of the New Jersey court is in conformity with our views. So, we hold that Hamilton Lang was not subject to service of civil process at the time, and that he is entitled to attack it by plea in abatement.
The question as to whether prohibition is the proper remedy has been settled by Wolfe v. Shaw, Judge,
The writ will issue in accordance with the prayer of the petition.
Writ awarded.