Fischer v. Munsey Trust Co.

Process; Pleading; Abatement; Bad Faitii. 1. Where the question of the validity of the service of process may be determined as a matter of law, it is proper to raise it by a motion to quash (following Ricketts v. Sun Printing & Pub. Asso. 27 App. D. C. 222; Ferguson Contracting Co. V. Coal & Coke R. Co. 33 App. D. C. 159; Toledo Computing Scale Co. V. Miller, 38 App. D. C. 237; and Wendell v. Holland America Line, 40 App. D. C. 1) ; but where the affidavits in support of and in opposition to such a motion raise an issue of fact, and the parties do not waive a trial by jury, the motion must necessarily be denied and the question determined on a plea in abatement. 2. Where a plea in abatement is filed during the summer recess of the court, about thirty days after the filing of affidavits in opposition to a motion to quash the service of process, it cannot be said that the defendant was guilty of undue delay in filing the plea. 3. If the defendant in an action is induced by the representations of the plaintiff to come within the jurisdiction of the court for the purpose of a conference having for its object an amicable settlement of the controversy between them, and, while engaged in such conference, service of process is made upon him, such an act is one of bad faith amounting to misrepresentation; and if pleaded in abatement of the action, a motion to strike out the plea should be denied.

Hearing on an appeal by the defendant from a judgment for the plaintiff, entered for want of a sufficient affidavit of defense in an action on a contract. The Court in the opinion stated the facts as follows: This appeal involves an order of the supreme court of the District striking out appellant’s plea in abatement, in which it is alleged that service of summons in the action was procured to be served upon him within this jurisdiction by trick, device, and fraud. The action was commenced June 3, 1914. On June 13th following, appellant, John L. Fischer, appeared specially by his attorney, and filed a motion to quash the service. In his affidavit in support of the motion he sets forth that he is a resident of the city of Louisville, in the State of Kentucky, and is not and never has been a resident of the District of Columbia; that on the evening of June 2, 1914, in response to a letter from the appellee, the Munsey Trust Company, and for the purpose of transacting the business referred to in that letter, and for no other purpose, he came to Washington. In the letter, a copy of which is included in the affidavit, appears the following: “Inasmuch as this transaction appears to be considerably involved, we wrould earnestly recommend that you come to Washington at once in order that we may reach an amicable settlement. This will possibly be the means of our reaching an agreement regarding your indebtedness, whereby you could obtain possession of both of the notes we hold, thereby settling the matter once and for all so far as we are concerned. If an agreement could be reached, it would unquestionably prevent the filing of suit against you in Louisville, as we are fully determined to put this matter at an issue at once. We will hold this matter in abeyance, awaiting an answer to this letter, until Tuesday, June 2, 1914, before we forward the case to Louisville for suit.” The affidavit further states that on the morning of June 3d appellant was requested by one of the officers and agents of the appellee to be at its place of business at 1:30 o’clock, p. m., on that day, for the purpose of discussing tbe matter contained in said letter; that appellant acceded to this request, but that within a few minutes after his arrival at such place of business, and while discussing the matter aforesaid, summons was served upon him in this action. On June 19th following, appellee filed affidavits in opposition to the motion to quash and raising an issue of fact. Thereupon, on June 24th, the court overruled the motion. On August 25th following, appellant filed his plea in abatement, supported hy affidavit containing the averments of his original affidavit. To this plea appellee at first demurred, but subsequently withdrew the demurrer, and moved that the plea he stricken from the files, which motion, over the objection and exception of the appellant, was granted. Thereupon the court, over the objection and exception of the appellant, entered judgment against him under the 73d rule.