Title | Civil Procedure - Tickle v. Barton |
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Author | Stefanie Rehe |
Course | Civil Procedure Law |
Institution | George Washington University |
Pages | 3 |
File Size | 97.2 KB |
File Type | |
Total Downloads | 63 |
Total Views | 160 |
Chapter Main Points (Smith) 1st Semester...
Civil Procedure Tickle v. Barton -Caption: T v. Barton S.C. Appeals of WV (1956) -Parties: P = Richard Tickle (infant) D = Raymond Barton (Austinville, VA) & Lawrence Coleman -Facts: Tickle’s friend is suing on his behalf for action of trespass Coleman is accused of operating Barton’s motor vehicle on private property, not public highway Plaintiff is suing both parties for personal injuries caused by negligence P’s attorney calls Barton (w/o revealing identity) to invite him to a banquet w/o authorization P’s attorney calls/hires ppl call Barton’s home & wife notifies he is headed to banquet -D’s attorney asks P’s rep. & denies doing, hiring, or having any knowledge of calls -Procedure: -Tried serving Barton under statute relating nonresident driver actions against or by while validity of service was still undecided at time instant decision rendered -P’ attorney causes alias process (retry process when 1st fails) to serve Barton in McDowell County by sheriff during Barton’s appearance at banquet -Barton uses abatement to claim alias process unfair, “tricked” to come to McDowell County -Circuit court overrules demurrer of plaintiff -Key = B4 invite, Barton did not know about the event or intend to go -Issue: If P’s attorney lied to D in order to have him show up at a certain location for purpose serving him w/ summons for pending lawsuit, shall service be effective? -Rule/Holding: Service shall NOT apply to party if other party, his agent, or someone on behalf is using trickery/deceit to mislead party Court has jurisdiction but will choose not to try if lawful act is accomplished by unlawful means (tricking someone to be served specific location = ex) -Disposition: SC affirms circuit court overruling demurrer was correct -Dissenting: Does NOT disagree with the rule of law laid down, but that the facts presented bring this case w/in influence of this rule Believes case is not fraud, but failure to taking advantage situation Points to fact Barton already knew of case and questioning trial Action actually occurred in McDowell County where usually triable *Abatement: not stating right to relief, but that P needs to retry cuz made procedural error *Demurer: object that opponent's point irrelevant/invalid, while granting factual basis of point Class Notes:
Tickles v Barton -Agent = Someone who acts on behalf of another (ex = employee) -Principal = person who they are working on behalf of -Only sued Barton (strategically) -Deter employers to hire unreliable employees and motivate employers to take measurement to create safe work environment (only work certain amount of hours before break) -Writ of certori? = Plaintiff can sue employer if employee is negligent while working in scope of employment -Forcing a business to internalize cost of business (instead of imposing cost on the world externalizing cost of operation) removes incentive to allow the action to happen again
T v C (WV) (WV) B (VA)
-This suit would be a problem in federal court (merits of suit is NOT issue of this case though) -Issue of suit = about service of process (how complaint is brought to D’s attention, means of notifying D of being sued) -Initially complaint filed over child getting hurt, but higher court is focusing on service of process *Alias process = “a second bite at the apple”, 2nd summons when 1st was ineffective -Had been some attempt to notify Barton, Barton claims it wasn’t correct, so Tickle’s attorney summons a different way using alias process instead of waiting for court -P’s argument = You can’t induce someone into the premises for service of process -Uses plea in abatement to present his objection of means of service of process to court Plea in abatement = attacking time, place, or mode to obtain jurisdiction (now motions to dismiss) -Tickle’s attorney uses demurrer -Demurrer = Legal way of saying “so what” -Objection to relevance, not to the validity of the facts themselves -Didn’t say I didn’t call him up, but who cares -Effectively acknowledges the facts of other side (and assume they are right) -Want an appeal, must wait until claim is finalized (D owes this amount to P) -Inter-lockage order = can appeal during suit, don’t have to wait until claim resolved -Barton’s fears = If he doesn’t know service of process was valid then may have to change travel habits, more procedural ranking = more expensive, Tickle could lose to Barton but then go after Coleman and found guilty under negligence & turn around to sue Barton in VA again -Plaintiff usually pays by contingency = I will bear all the risk of the trial if we lose, but win then I get % -Defendant can’t usually cuz no payout, so pay hourly
-SCOA says demurrer is wrong, it does matter since you can’t trick D into being in area for summons -Now case remanded back to trial court to gather facts of if Tickle’s attorney did make the call, etc. (wasn’t known when in SC) -Example of why sometimes states may allow for immediate appeal (unfair to D paying hourly, can be very ineffective if later sent to appeals court to be sent back to find facts in trial court) -If something will defeat jurisdiction immediately, then might want COA to decide right away before another entire trial -Like Tickle, about scope/process of personal jurisdiction for states. Capron is about subject matter jurisdiction....