84 S.W.2d 1017 | Ky. Ct. App. | 1935
Affirming in part and reversing in part.
While this was going on, some one (perhaps Gambrel) handed Sutton a paper with the remark, "Here is your copy of the papers," or, "Here is a summons for you." Sutton, supposing this to be some paper in connection with the assault and battery matter, so he says, thrust it in his pocket without reading it. The surety on Sutton's bond, who had gone with him from Corbin to Pineville, supports him, but Jackson testifies Sutton read the paper which was a summons to appear and answer the $10,000 damage suit filed against him by Mrs. Tuggle.
The grand jury did not indict Sutton, and he had almost forgotten the matter when on May 23, 1930, an execution in favor of Mrs. Tuggle for $4,500 was levied on Sutton's automobile and on his house in Corbin. It appears that in the meantime Mrs. Tuggle had, by simply reading to the jury her petition and without introducing any evidence, obtained this $4,500 judgment against him in her $10,000 suit.
The levy of this execution awakened Sutton and he got busy. He appealed from the $4,500 judgment and he filed suit under section 518 of the Civil Code of *354 Practice for a new trial of that case which the trial court awarded him.
"All courts hold that, where the attendance of the defendant is procured by an arrest caused for the sole purpose of securing jurisdiction so he may be served with civil process, the service of the process will be set aside."
The prosecution of Sutton on the criminal charge has never been pressed and it is evident that it was begun for the sole purpose of bringing Sutton to Bell county, which Mrs. Tuggle's son-in-law, Jackson, planned and carried out for the purpose of having Sutton served with process in the $10,000 damage suit while in Bell county, which Jackson apparently thought was necessary to give the Bell circuit court jurisdiction. Many other matters are discussed in briefs, but it is needless to go into them. The chancellor did not err in the second case in awarding a new trial of the first one.
We regard this, which is copied from Cooley on Torts, p. 190, as quite opposite here:
"One way in which process is sometimes abused, is by making use of it to accomplish not the ostensible purpose for which it is taken out, but some other purpose for which it is an illegitimate and unlawful means. * * * It is the duty of the court, where the service of the writ is brought *355 about by deception through abuse or other process, or by any unlawful act, to take care that no benefit be derived from it. The effectual mode to accomplish this will be to set aside the service as unauthorized. It has, therefore, been very justly said that the courts will not tolerate service of process on any person who, for that purpose, has been deceitfully brought within their jurisdiction. * * * The principle is, that no one shall derive advantage from abuse of the process of the courts."
Four serious attacks are made upon the $4,500 judgment, some of which we would have to sustain, but in view of the conclusion we have reached in the second case by which the first case is affected there is no need to discuss them.
Judgment in the first case is reversed. Judgment in the second case is affirmed.