Tickle v. Barton

Supreme Court of Appeals of West Virginia · 1956 · Civil Procedure

95 S.E.2d 427 (1956)

Updated July 29, 2026

Civil ProcedureService of processPersonal jurisdictionfraudulent servicenonresident defendantplea in abatementdemurrertrickery

Facts

The plaintiff sued Barton, a Virginia resident, and Coleman for injuries allegedly caused by Barton's vehicle on private property in McDowell County. While an earlier jurisdictional challenge to service through the State Auditor was still pending, the plaintiff's attorney obtained alias process and telephoned Barton, concealing his identity and falsely purporting to invite Barton on behalf of banquet sponsors to attend a school banquet in War, West Virginia. Barton alleged he did not know of the banquet, did not plan to attend, and would not have entered McDowell County absent the invitation. When Barton arrived at the banquet, he was personally served by a deputy sheriff.

Issue

Whether allegations that the plaintiff's attorney induced a nonresident defendant to enter the county by trickery, artifice, and deceit for the purpose of serving process are sufficient, if taken as true on demurrer, to invalidate that personal service. More specifically, the question was whether service obtained after such inducement can support the court's exercise of jurisdiction over the defendant.

Rule

When a nonresident who is beyond the reach of a court's process is inveigled, enticed, or induced by fraud, trickery, artifice, or wrongful device, attributable to a party through that party's attorney or other representative, to come within the court's jurisdiction for the purpose of obtaining service of process, any resulting service is invalid and will be vacated and set aside upon proof.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nora Velez, who lives in Knoxville, Tennessee, sued Owen Mercer, a resident of Bristol, Virginia, in a county court in West Virginia. Nora's investigator falsely told Owen that a civic committee in Bluefield wanted him to present a scholarship at a dinner, and Owen traveled there solely because of that call; a deputy then personally served him at the event.

If Owen timely challenges the service, how should the court rule?

Explanation. The majority adopted the rule that when a nonresident beyond the reach of the court's process is inveigled, enticed, or induced by fraud, trickery, artifice, or wrongful device attributable to the plaintiff to come within the jurisdiction for the purpose of obtaining service, the resulting service is invalid and should be vacated upon proof. The rule applies to acts of agents and others acting on the plaintiff's behalf, not only to the plaintiff personally.