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District Court of Appeal, First District, Division 2, California.


Civ. 12070.

Decided: April 16, 1942

J. Paul St. Sure, of Oakland, and Bradford M. Melvin and Charles A. Christin, both of San Francisco, for petitioners. James R. Agee, of Oakland, for respondents.

The petitioners seek a writ of prohibition to restrain the superior court from taking any further proceedings in an action based upon a tender which was made to E. L. Bowes when he was brought into the jurisdiction upon an order to take his deposition, which petitioners assert was procured for the sole purpose of bringing him into the county in order to make the tender, and thus “create” venue by trick and device.

The individual petitioners are residents of the city and county of San Francisco where the corporation has its principal place of business. They were sued in the superior court in Alameda County where they appeared and filed a cross–complaint. A judgment went to the plaintiff in that action on both the complaint and cross–complaint, but the defendants' motion for a new trial was granted. The plaintiff then appealed to the Supreme Court and the defendants' motion to dismiss that appeal was denied. Connell v. Bowes, 19 Cal.2d 870, 123 P.2d 456. Pending the appeal the plaintiff commenced a new action in Alameda County growing out of the same transaction. It is this proceeding which the petitioners seek to restrain.

The theory of the petition is that the plaintiff misused the process of the superior court to bring one of the petitioners into Alameda County by trick and device in order to make a tender there which was a necessary prelude to the commencement of the second suit, and that this tender made in Alameda County made that county the proper county for the trial of the action as “the county where such obligation is to be performed * * * or * * * the county in which such obligation is incurred * * * .” Section 395, Code of Civil Procedure.

It is alleged in the petition and not denied that both suits involve the same subject matter––an action seeking specific performance of an option to sell capital stock of a corporation, for an accounting, and for an injunction. After the judgment in the first action, and pending the appeal from the order granting a new trial, the plaintiff cited petitioner E. L. Bowes to appear in Alameda County to give his deposition in the first action on October 25, 1941, though his deposition had theretofore been taken, and he had testified at length in the former trial. Suspecting that the only purpose of the citation was to compel him to enter Alameda County so that a tender might be made to him in that county, this petitioner duly appeared before the superior court and objected to the taking of his deposition upon all legal grounds. These objections were overruled by the court; the petitioner appeared in response to the citation; some frivolous and immaterial questions were asked him, and he was then made a tender of $5,000 in cash and notified that plaintiff elected to exercise the option. Thereafter, on November 15, 1941, the plaintiff commenced a new action for specific performance of the option based upon the tender made on October 25th. Summons was served upon the petitioners in San Francisco. They appeared specially in this second action and moved to quash service upon the ground that the tender under the alleged option was made while petitioner Bowes was in Alameda County solely because of the citation ordering him to appear and give his deposition, that those proceedings were all designed to lay the venue of the action in Alameda County, and were not taken in good faith, or for any legal purpose. The motion to quash was denied and the petitioners allege that, unless restrained, the superior court will compel them to stand trial in Alameda County and deny them their legal right to have the cause tried in the county of their residence.

The theory upon which the petition is based rests upon the settled rule that “Personal service obtained by inveigling or enticing the person to be served into the territorial jurisdiction of the court, by means of fraud and deceit, actual or legal, or by trick or device, or by the use of force, is void and will be set aside.” 50 C.J., p. 488. In accord are Hammons v. Superior Court, 63 Cal.App. 700, 219 P. 1037; Ewing v. Elliott, 51 Ga.App. 565, 181 S.E. 123; Parker v. Marco, 136 N.Y. 585, 32 N.E. 989, 20 L.R.A. 45, 32 Am.St.Rep. 770; Filer v. McCornick, D.C., 260 F. 309; Stewart v. Ramsay, 242 U.S. 128, 130, 37 S.Ct. 44, 61 L.Ed. 192, where the Supreme Court, giving the reasons for the rule, quoted from Parker v. Hotchkiss, 1849, Fed.Cas.No.10,739, 1 Wall Jr. 269, as follows: “ ‘The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. Witnesses would be chary of coming within our jurisdiction, and would be exposed to dangerous influences, if they might be punished with a lawsuit for displeasing parties by their testimony; and even parties in interest, whether on the record or not, might be deterred from the rightfully fearless assertion of a claim or the rightfully fearless assertion of a defence, if they were liable to be visited on the instant with writs from the defeated party.’ ”

Respondents do not question the application of the rule as it relates to “process” as that term is generally used. They contend that it does not relate to a tender upon which subsequent process rests, but they concede that they had planned and intended prior to the taking of the deposition to make the tender while the witness was in attendance under the citation, and insist that they had a right to make it at that time. They assured the superior court before the deposition was taken that they were acting in good faith, and have repeated those assurances here.

There are three questions which require consideration––(1) does the rule apply to jurisdiction between counties of the same state; (2) does it apply to a tender of this character; and (3) have the petitioners pursued the proper remedy.

The first question is answered in the affirmative in State v. Superior Court, 175 Okl. 632, 54 P.2d 317; Groce v. Skelton, 206 Mo.App. 471, 230 S.W. 329. Since the fundamental basis of the doctrine is the right of the courts “to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them” (Filer v. McCornick, supra [260 F. 314]) there is no sound reason for a limitation of the rule to parties residing in separate states and not to those residents of the same state, but of separate counties, when the venue rests upon such residence.

The second question can be answered only by analogy, since we have been unable to find any authority directly upon the subject. All the cited cases refer generally to the service of “process,” and respondents contend that the doctrine should be limited to some service of a writ or summons compelling a party to appear or attend upon a judicial proceeding. But in some of the cited cases a broader use of the rule is recognized. In Ewing v. Elliott, 51 Ga.App. 565, 181 S.E. 123, 124, 125, it was said that this “immunity” is not “simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration of justice.” Others place it upon the ground of public policy. In Wood v. Wood, 78 Ky. 624, 629, it was said that where a party induces another into the jurisdiction by fraud and device for the purpose of service he “will not be permitted to take advantage of his own wrong, and thus receive benefits that would not have accrued but for the fraud.” In Filer v. McCornick, supra at page 315 of 260 F., it was said: “It is these considerations which have actuated the courts in extending the protection of the rule, so limited in the beginning, until it has come to embrace practically every one who may be called to a strange jurisdiction in connection with a cause, and every proceeding or step in the action, either heard before the court or any of its officers.” (Emphasis ours.) In Groce v. Skelton, supra [206 Mo.App. 471, 230 S.W. 330], it was said: “Legal fraud is measured by the facts and actions of the parties and the net result * * * that process procured by fraud or misrepresentation cannot be permitted to stand * * *.” (Emphasis ours.)

There can be no question that but for the tender made in Alameda County all the petitioners were entitled to defend the action in the city and county of San Francisco, the county of their residence. § 395, Code Civ.Proc. The respondents concede that “The new action was identical to the prior action, except that it was alleged that a new tender was made on October 25, 1941.” The purpose of this tender was to fix the venue of the new action in Alameda County as “the county where such obligation is to be performed * * * or * * * the county in which such obligation is incurred * * *.” as these exceptions to the general residence rule are stated in section 395 of the code. The fact that both actions involved the same contract should not affect the application of the “immunity” rule. Von Kesler v. Superior Court, 109 Cal.App. 89, 292 P. 544, and similar cases cited by respondents, where the “nonresident” was served with process while voluntarily within the jurisdiction as a suitor are not in point.

The petition alleges that relief was sought in the superior court and denied. It may be assumed that any other motion based upon the same grounds will likewise be denied. The petitioners are therefore forced either to waive the attack upon the jurisdiction and defend on the merits, or stand upon the defense of lack of jurisdiction and waive their statutory right to a trial on the merits in the county of their residence since the grounds here urged do not appear to be grounds for a motion for a change of the place of the trial. In such cases prohibition is the proper remedy. Jardine v. Superior Court, 213 Cal. 301, 305, 2 P.2d 756, 79 A.L.R. 291; Davis v. Superior Court, 184 Cal. 691, 696, 195 P. 390.

Let a peremptory writ of prohibition issue as prayed.

NOURSE, Presiding Justice.

STURTEVANT and SPENCE, JJ., concurred.

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