Western States Refining Co. v. Berry ( 1957 )

WORTHEN, Justice.

Appeal by defendant from a denial of a motion to quash service of summons in this action which was made on the ground that service was obtained by inveigling or enticing the defendant into the state of Utah by deceit, artifice, or trick and on the further ground that under the facts of this case defendant was immune from service of summons at the time and place summons was served upon him.

Plaintiff is a Utah corporation distributing petroleum products in the intermoun-tain area and has its main offices in Woods Cross, Utah. Defendant, a resident of Rexburg, Idaho, leased a service station from plaintiff in Rexburg. Difficulties arose between plaintiff and defendant concerning certain features of the lease, and plaintiff’s attorney, upon request of one of plaintiff’s officers went to Idaho to discuss these difficulties with defendant in order to resolve them. The attorney was instructed that if a settlement couldn’t be reached he should invite defendant to come to Woods Cross for further negotiations. The Idaho negotiations proved unfruitful, the invitation was extended by plaintiff’s attorney, and defendant came to Woods Cross as requested by plaintiff for the purpose of discussing settlement. When settlement negotiations again proved unsuccessful, plaintiff had process served upon defendant before defendant left Woods Cross to return to Idaho. It is undisputed that defendant came to Utah solely for these settlement negotiations and returned directly to Idaho as soon as they were concluded.

Upon these facts the trial court refused to quash service of summons. Although no ground was mentioned by the court for the denial of the motion to quash, it is implicit in the denial that the trial court found no actual fraud or misrepresentation on the part of plaintiff.

The sole question in this case is then whether under these facts, which are undisputed, defendant was immune from service of process by plaintiff at the time and place of service. We conclude that he was so immune from service by plaintiff.

Although immunity from process has been usually grounded in language of fraud and deceit in these cases,¹ it is apparent from a reading of those cases in which the facts fall closely to those of the instant case that the use of this language has resulted in confusion. Some courts and writers have termed this situation “legal fraud” in order to justify setting aside service of process when no actual fraud had been found by the trier of fact.²

We are of the opinion that the better rule is that a showing of actual fraudulent intent and misrepresentation is not necessary in order to void service of process in cases of this type. It is our opinion that when plaintiff extends an invitation to defendant to enter the jurisdiction for settlement negotiations, equity and good conscience will not permit plaintiff to take sharp advantage of defendant’s presence in the jurisdiction so long as defendant is in the jurisdiction for the purpose for which plaintiff invited him. One who is invited into a jurisdiction to discuss compromise and settlement of a disputed matter will not be subject to service of process in that matter, if he comes into the jurisdiction for the sole purpose of discussing compromise and settlement, by the one extending the invitation, for a reasonable period involved in coming to the negotiations and returning therefrom, as well as during the period of actual presence at the negotiations, unless the party extending, the invitation advises him at the time the invitation is extended that he will be served with process immediately if settlement negotiations fail.³ Honesty and fair play between litigants require no less.

The judgment of the lower court is reversed with directions to quash service .of-summons upon defendant in this action. Costs to defendant.'

McDonough, c. j., and crockett, and WADE, JJ., concur.

1 . See 42 Am.Jur. 32, Sec. 35.

2 . Mertens v. McMahon, 334 Mo. 175, 66 S.W.2d 127, 93 A.L.R. 1285; 72 C.J.S. Process § 39.

3 . State ex rel. Ellan v. District Court, 97 Mont. 160, 33 P.2d 526, 93 A.L.R. 865; Gampel v. Gampel, Sup., 114 N.Y.S.2d 474; Ultcht v. Ultcht, 96 N.J.Eq. 583, 126 A. 440.