(Download) "State Ex Rel. Ellan v. District Court" by Supreme Court of Montana ~ eBook PDF Kindle ePub Free
eBook details
- Title: State Ex Rel. Ellan v. District Court
- Author : Supreme Court of Montana
- Release Date : January 04, 1934
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 67 KB
Description
Prohibition ? Process ? Enticing Nonresident Defendant into State for Purpose of Securing Service of Summons ? Lack of Jurisdiction to Try Cause ? Overruling Motion to Quash Service Error ? Review of Evidence Heard on Motion ? Presumptions. Prohibition ? Actions ? Lack of Jurisdiction ? When Supreme Court will Issue Writ. 1. Where in the preliminary stages of a suit it is shown to the supreme court that the district court is without jurisdiction to proceed, the writ of prohibition will issue to prevent the needless waste of time and money of the court and the litigants; in such case the appellate court is not correcting error within jurisdiction, but is preventing the assumption of jurisdiction where it does not exist. Same ? Summons ? Motion to Quash for Lack of Jurisdiction ? Overruling of Motion by Trial Court ? Supreme Court may Consult Evidence Introduced on Hearing of Motion. 2. As against the contention that the supreme court on application for writ of prohibition to restrain the district court from proceeding in a cause because of lack of jurisdiction over the person - Page 161 of defendant, it is bound to accept the findings of the lower court and cannot consider the sufficiency of the evidence introduced at the hearing of the motion to quash service of summons, held, that the reviewing court may examine not only the pleadings but also the evidence on which the respondent court determined it had jurisdiction; but when the evidence is conflicting or there is substantial evidence in the record to sustain that courts ruling, it will not be disturbed by the supreme court. Same ? Overruling of Motion to Quash Summons by District Court ? Evidence Heard on Motion not Brought to Supreme Court on Application for Writ ? When Presumption of Correctness of Lower Courts Decision Does not Apply. 3. While ordinarily the supreme court will presume, on application for writ of prohibition to restrain the district court from proceeding in a cause because of lack of jurisdiction over the person of defendant, that, where oral testimony was introduced on the hearing of a motion to quash service of summons but not brought before it, the testimony supports the lower courts action, such presumption does not obtain where the respondent court in its answer to the alternative writ in effect sets forth the purport of the oral testimony on the material facts in the case. Same ? Enticing Nonresident Defendant into State for Purpose of Service of Summons Under Pretense of Settlement of Cause ? Jurisdiction. 4. The rule that when a nonresident party to an action or a witness comes into the state for the sole purpose of attending a trial he is immune from the service of process during his attendance and for a reasonable period thereafter to enable him to return home applies to a case in which a nonresident is enticed into the state under the pretense of effecting a settlement of a controversy, in order to enable the one extending the invitation to make service of process upon him. Compromise and Settlement ? Law Favors Settlement of Controversies. 5. The law favors the compromise and settlement of disputed claims. Prohibition ? Writ Issued to Prevent Further Proceedings in Cause Where Nonresident Defendant Enticed into State Under a Pretense of Settlement for Purpose of Making Service of Summons. 6. Held, on application for writ of prohibition to restrain the district court from proceeding in a cause after denying a motion to quash service of summons made on the ground that relator had been enticed into the state for the pretended purpose of bringing about a settlement of a disputed claim, that irrespective of a finding of the respondent court on hearing of the motion that the party causing service of process to be made, had acted in good faith, the court erred in refusing to quash the service and that it was without jurisdiction to proceed. - Page 162