## Facts

- Richard Tickle, a minor suing by next friend, sought damages for personal injuries allegedly caused by a motor vehicle owned by Raymond Barton and driven by Barton’s agent, Lawrence Coleman.
- The injury-producing incident occurred in McDowell County, West Virginia, on private property rather than on a public road or highway.
- Barton was a Virginia resident outside the ordinary territorial reach of West Virginia process.
- Tickle first attempted service on Barton under a nonresident motorist statute limited to accidents occurring on public streets, roads, or highways; Barton challenged that service by plea in abatement because the incident occurred on private property.
- While that challenge remained pending, Tickle’s counsel caused alias process to issue and arranged for a deputy sheriff to personally serve Barton in McDowell County.
- Barton was personally served at an event in McDowell County after Tickle’s attorney allegedly induced Barton to enter the county by trickery and deceit, including contacting him by telephone and failing to disclose the caller’s identity as opposing counsel.
- Barton asserted he would not have come into the county absent that inducement and that the inducement was made for the purpose of enabling in-forum personal service.

## Issues

1. Whether personal service on a nonresident defendant is invalid when the defendant was induced to enter the forum by the plaintiff’s fraud, trickery, or deceit for the purpose of effecting service.
2. Whether Barton’s amended plea in abatement, alleging fraudulent inducement into the forum, stated a legally sufficient basis to defeat service when tested by demurrer.

## Decision

- The court held that personal service obtained by fraud, trickery, artifice, or wrongful device used to lure a nonresident into the jurisdiction for the purpose of service is invalid and does not support personal jurisdiction.
- The court held that Barton’s amended plea in abatement alleged facts that, if proved, would bring the case within that rule.
- The court affirmed the trial court’s order overruling Tickle’s demurrer to the amended plea in abatement.

## Legal Principles

- A court will not exercise personal jurisdiction based on service of process when the defendant’s presence in the forum was procured by the plaintiff’s fraudulent or deceitful conduct aimed at enabling service.
- On demurrer, well-pleaded factual allegations in a plea in abatement are taken as true; the question is legal sufficiency, not whether the fraud is ultimately proved.
- When fraudulent inducement into the jurisdiction to permit service is shown, the resulting service is subject to being vacated and set aside.

## Conclusion

The court sustained a challenge to personal jurisdiction where a nonresident defendant alleged he was lured into the forum by opposing counsel’s deceptive conduct to facilitate service, holding that such service is invalid and that the allegations were sufficient to survive demurrer.


Tickle v. Barton, 142 W. Va. 188, 95 S.E.2d 427 (W. Va. 1956)