Tickle v. Barton

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Tickle v. Barton
Court Supreme Court of Appeals of West Virginia
Citation 95 S.E.2d 427 (W.Va. 1956)
Date decided November 13, 1956
Appealed from Circuit Court of McDowell County
Case Opinions
majority written by Haymond
dissent written by Given


  • Tickle (P) was injured in WV by a car owned by Barton (D), a resident of VA
  • P sued D in WV court and served notice on him in VA; D challenged this service and P tried to find another way to serve notice
    • P’s attorney invited D to a banquet in WV and P served notice again
  • D challenged the second serving claiming it was fraud
    • P’s attorney denied this claim and P demurred to this plea
  • Court had to take D’s claim at face value; question was whether or not alleged actions of P’s attorney constituted fraud


  • Question certified to appeals court from denial of demurrer to plea in abatement challenging validity of service of process
    • Circuit court had overruled demurrer of P to amend plea in abatement


  • If a person is enticed by fraud into a jurisdiction for service of process, is that service of process valid?



  1. 42 AmJur, Process, §35, general principle is: “If a person resident outside the jurisdiction of the court and the reach of its process is inveigled (fraudulent), enticed, or induced, by any false representation, deceitful contrivance, or wrongful device for which the plaintiff is responsible, to come within the jurisdiction of the court for the purpose of obtaining service of process on him in an action brought against him in such court, process served upon him through such improper means is invalid, and upon proof of such fact the court will, on motion, set it aside
    1. P’s attorney’s actions were fraudulent
    2. No persuasive reasoning, but allowing an action like this for attorneys to circumvent jurisdiction rules is not good for public policy
    3. Difference between:
      • Subject Matter Jurisdiction: Affects whether a court can hear the TYPE of case presented and
      • Personal Jurisdiction: Affects whether a court has the power to hear the case over the party or parties involved

FINAL DEPOSITION: Ruling affirmed.


  • The rule is clear. The actions alleged, even if all true, do not constitute fraud. The attorney failing to identify himself was the wrongdoing, but he did not lie about the banquet and only asked if D was going to go, and had someone follow up to confirm D was going to go.


  • Service of Process on a person who has been enticed into a jurisdiction by fraud is not valid.
  • West Virginia Court declines to exercise jurisdiction over individuals enticed into the jurisdiction by fraud


  • Each state has territorial sovereignty (jurisdiction over all people and property inside the state boundaries)