State ex rel. Sivnksty v. Duffield

Riley, President:

On a rule heretofore issued Mike Sivnksty seeks a writ of prohibition against Honorable Charles A. Duffield, Judge of the Circuit Court of Gilmer County, and Johnny Bob DeVaughn, an infant, who sues by Bryan DeVaughn, his next friend, prohibiting further proceedings in an action of trespass on the case instituted in the Circuit Court of Gilmer County, wherein Johnny Bob DeVaughn, an infant, who sues by Bryan DeVaughn, his next friend, is plaintiff, and the petitioner, Mike Sivnksty, is defendant.

On June 30, 1951, within the corporate limits of the Town of Glenville, an automobile owned and operated by the petitioner struck two children, the respondent, Johnny Bob DeVaughn, an infant, and Alma Jean DeVaughn, an infant, who at that time were walking on State Route No. 33, injuring them. Shortly thereafter the petitioner was placed under arrest by a police officer of the Town of Glen-ville and incarcerated in the county jail of Gilmer County. Being unable to obtain bond, petitioner was held in jail until July 2, 1951, when he was taken to the office of the mayor of the town for trial at ten o’clock in the morning. Petitioner’s counsel not being present at that time, he was returned to jail to await the trial of the case before the mayor in the afternoon. Between the time petitioner was brought before the mayor on July 2, 1951, at ten o’clock in the morning, and the time set for the trial of his case in the afternoon of that day, and while he was in the custody of the jailer, he was served with a civil process or summons issued by the Clerk of the Circuit Court of Gil-mer County, commencing the action of trespass on the case sought to be prohibited, which action, as disclosed by the declaration therein, is for damages for personal injuries to the respondent, Johnny Bob DeVaughn, growing out of the happenings contained in the “reckless driving” charges, upon which petitioner had been arraigned before the mayor.

At the hearing in the afternoon of July 2d, the petitioner was found guilty and a judgment rendered imposing a fine of fifty dollars and the costs of the prosecution. Appeal having been had to the Circuit Court of Gilmer County, a verdict of guilty was returned by the jury. From the judgment and sentence rendered on the verdict of guilty in the criminal prosecution a petition for a writ of error was filed on February 2, 1952, in the office of the Clerk of this Court, which writ of error was refused on February 25, 1952.

In the civil action petitioner appeared specially, and filed his plea in abatement, alleging that the circuit court was without jurisdiction of'the action, for the reason that at the time petitioner was served with the process instituting the action, he was a nonresident of Gilmer County and a prisoner in the Gilmer County jail, having theretofore been arrested without warrant on June 30, 1951, as a consequence of the highway accident upon which plaintiff based the civil action.

The circuit court sustained a demurrer to the petitioner’s plea in abatement, and set the action for trial on the trial docket at the March, 1952, term of court.

In this proceeding in prohibition a stipulation was filed, signed by counsel for the petitioner and the respondents, to the effect that the petitioner came into Gilmer County in the afternoon of June 30, 1951, with the intention of remaining in the county for a period to extend over the fourth of July holiday; that after his car had struck and injured the children, petitioner was arrested and placed in the Gilmer County jail; and that immediately on his release on appeal bond, he left Gilmer County on July 2, 1951; and that “the facts set out in relator’s petition and as stipulated above, clearly and fully give the facts and circumstances involved in this proceeding.”

The sole question presented by this record is: In the circumstances of this case was the petitioner immune from civil process at the time he was served with process in the civil action? Petitioner asserts here that the mere fact that he intended, when he came into Gilmer County, to remain for a period of a few days could not render his continuing presence in Gilmer County, after he was arrested, one of a voluntary status, when he was, in fact, incarcerated in the county jail there against his will.

The original and prime purpose for which the privilege of immunity from civil process on nonresidents of a county or state charged with crime therein was the protection of the court itself from interference with its judicial processes. Thus, originally the rule was asserted as the privilege of the court to secure the administration of justice free from outside interference or influence. Later the rule was enlarged for the protection of suitors, witnesses, jurors, and court officials from process, both in civil and criminal cases. Whited v. Phillips, 98 W. Va. 204, 205, 206, 120 S. E. 916. In the Whited case the Court said: “It is well said, that if there is ever a time when a man should be relieved of all other concerns, and when he should be permitted to use unhampered his every faculty, it is when he is on trial under charge of a crime. Judicial reasoning also recognizes the right of a man, ordinarily, to be tried by a jury in the vicinity in which he resides, so that he may have such advantage and safeguard there as his conduct and character shall merit.”

In addition the privilege of immunity from civil process of a nonresident of a county or state, charged with crime therein, has underlying it the public policy that a person charged with crime in a county of which he is a nonresident will not be deterred from appearing before the courts of that county or state by the threat of civil or other process; and thus a person so charged with crime because of the immunity extended will be encouraged to return to the county or state in which he is charged with crime to respond to the criminal process.

The controlling facts in this record are that the petitioner, a nonresident of Gilmer County, came into the county voluntarily to spend a few days; and while in the county he was arrested and incarcerated in the Gilmer County jail, where the process in the civil action was served upon him; so that while in the first instance petitioner’s presence in the county was voluntary, after his arrest and incarceration it became involuntary. The question whether the petitioner was immune from the service of civil process presented by this state of facts is novel in this jurisdiction.

In the syllabus to Whited v. Phillips, supra, perhaps the leading case in this jurisdiction, bearing on the instant subject matter, this Court held: “A non-resident of West Virginia, who voluntarily and without compulsion of law, submits himself to the jurisdiction of a state court, in answer to an indictment therein against him, and who is not at the time a fugitive from justice, is privileged while attending court from service of process in a civil suit.” In this jurisdiction the immunity rule has been applied to a case in which a defendant in a civil action was served with process while he was in a county, of which he was not a resident, in obedience to a citation from a member of the Department of Public Safety to answer a criminal charge. Morris v. Calhoun, 119 W. Va. 603, pt. 3 syl., 195 S. E. 341. It has also been applied to a case in which a person charged with a criminal offense in a county of which he was a nonresident, was arrested therefor in that county and later released on bond on his own recognizance, and who, in pursuance of such recognizance, returned to the county to answer the charge on the day set for trial. Lang v. Shaw, Judge, 113 W. Va. 628, syl., 169 S. E. 444. But in the case of State ex rel. Godby v. Chambers, Judge, 130 W. Va. 115, pt. 2 syl., 42 S. E. 2d 255, this Court held that “A person serving a sentence for a misdemeanor is not immune to the service of a summons in a civil proceeding.” In the Godby case the Court refused the writ of prohibition on the ground that after petitioner’s conviction, sentence, and incarceration on a misdemeanor charge, the reason for the application of the immunity rule was not present, and that in that case there was no criminal process within the meaning of the immunity rule. In the opinion in the Godby case, at page 120, the Court, without citing authority, stated: “It is agreed by all authorities that incarceration of itself does not make the person in prison immune from the service of process.”

In the instant case the petitioner went to Gilmer County of his own volition: he did not enter the county in response to a criminal process, because at the time of his entry therein he had committed no crime, and there was pending against him no criminal case. The statement of this Court contained on page 120 in the opinion in the Godby case, in our opinion, is consonant with the great weight of authority. In Crusco v. Strunk Steel Co., 356 Pa. 326, 74 A. 2d 142, 20 A. L. R. 2d 160, the Pennsylvania Supreme Court held that a defendant residing outside of a county in which a civil action had been commenced, and who was arrested on a warrant issued on an information of the plaintiff in the civil action and brought within the county, was not immune from civil process merely because of his status as a criminal defendant. For an excellent collation of authorities, see annotation in 20 A. L. R. 2d 160, pages 163 to 189, and the following cases cited therein: Dunn’s Appeal, 35 Conn. 82; Williams v. Bacon, 10 Wend. 636; Rosenblatt v. Rosenblatt, 110 Misc. 525, 180 N. Y. S. 463; White v. Underwood, 125 N. C. 25, 34 S. E. 104, 46 L. R. A. 706, 74 Am. St. Rep. 630; and Mosier v. Aspinwall, 151 Okla. 97, 1 P. 2d 633. “* * * person in custody on a criminal charge, whether before or after conviction, may be served with civil process.” 42 Am. Jur., Process, Section 138. In 72 C. J. S., Process, Section 82, the rule is well stated as follows:’“A person confined in jail on a criminal charge or imprisoned on conviction for such charge is subject to service of civil process, irrespective of the question of residence, at least if he was voluntarily in the jurisdiction at the time of the arrest and confinement.” For a case in point, supporting this statement, see Mosier v. Aspinwall, supra.

As the petitioner did not come and was not brought into Gilmer County under criminal process, the reason for the application of the immunity rule is not present, and he is not entitled to the writ of prohibition prayed for.

Writ denied.