Townsend v. Smith , 47 Wis. 623 ( 1879 )

Lyon, J.-

If. a person • is induced by false representations to come within the jurisdiction of a court for the purpose of obtaining service of process upon him, and process in an action brought against him in such court is there served, it is an abuse of legal process, and, the fraud being shown, the court will, on motion, set aside the service. This rule is elementary, and has been uniformly enforced in numerous eases both in this country and England. The principle of the rule seems to be that “ a valid and lawful act cannot be accomplished by any unlawful means; and whenever such unlawful means are resorted to, the law will interpose and afford some suitable remedy, according to the nature of the case, to restore the party injured by these unlawful means to his rights.” Per Snaw, C. J., in Ilsley v. Nichols, 12 Pick.; (270), 276.

In the present case the plaintiff inveigled the defendant, by artifice and falsehood, to come within the jurisdiction of the court in which the action was brought. The means by which the service of the summons was obtained, being fraudulent, were unlawful. The remedy which the law affords in such a case is to set aside the process.

This remedy is not given upon the ground that, by reason of the fraud, the court did not get jurisdiction of the person of the defendant by the service, but upon the ground that the court will not exercise its jurisdiction in favor of the plaintiff who has'obtained service of his summons by unlawful means. When that fact is made to appear — especially if the defendant has been guilty of no laches, — the court should vindicate the integrity of its process by" setting aside the service and turning the plaintiff out of court as a punishment for his gross fraud.

As already observed, courts have uniformly so proceeded in such cases, and we do not find that any court has ever stopped to inquire, under such ciremnstances, whether the appearance of the defendant is general or special. Such a case is entirely unlike one in which there has been a failure of proper service of process; for there the failure affects only the' defendant, while here the fraud affects the integrity of the process of the court. Surely a general appearauce to the action ought not to bar the court from vindicating the integrity of its own process, and we have seen no case which gives that effect to a general appearance.

We are of the opinion, therefore, that the ground upon which the learned circuit judge denied the motion to set aside the service of the summons is untenable, even though the defendant has appeared generally, which we greatly doubt. It is unnecessary, however, to determine the character of the appearance.

It was suggested, but scarcely argued, by the learned counsel for the plaintiff, that because his client committed the fraud for the sole purpose of getting the defendant within this state, so that he might be arrested on criminal process — this action being the result of an afterthought, — the service of the summons should be upheld.

The suggestion is hardly worthy of notice. The defendant was within the jurisdiction of the court by means of the fraud of the plaintiff; and no act of his, which that fraud enabled him to accomplish, can be allowed to stand, whether such act was predetermined or not. The court will not permit him to utilize his fraud for any purpose. In Ex parte Wilson, 1 Atk., 152, Lord Chancellor ILukdwicke said: “Even at law, where there is an irregular arrest, and an advantage is taken of the irregularity to charge him in custody at the suit of anothér person, the courts of law will discharge him from both.”

We conclude that the court below should have granted the motion.

In addition to those above cited, the following are some of tbe cases which it is believed sustain the views above expressed: Snelling v. Watrous, 2 Paige, 314; Carpenter v. Spooner, 2 Sandf., 717; Williams v. Bacon, 10 Wend., 636; Clark v. Metcalf, 41 Barb., 45; Goupil v. Simonson, 3 Abb. Pr., 475; Bulkley v. Bulkley, 6 Abb. Pr., 307; Dunlap v. Cody, 31 Iowa, 260; Whetstone v. Whetstone, id., 276; Wanzer v. Bright, 52 Ill., 35; Benninghoff v. Oswell, 37 How. Pr., 235; Wells v. Gurney, 8 Barn. & Cress., 769; Stein v. Valkenhuysen, Ellis, Bl. & Ellis, 65; Luttin v. Benin, 11 Mod., 50.

By the Court.— Order reversed, and cause remanded with directions to the circuit court to vacate and set aside the service of the summons.