Franklin v. Superior Court

DOOLING, J.

Petitioner, a resident of Missouri, seeks a writ of prohibition to prevent the further prosecution of an action in the superior court in which he is defendant and Elsie Barker is plaintiff on the ground that the court has no jurisdiction of his person.

Petitioner was married to Elsie Barker’s daughter and has by her one son, Richard J. Franklin, Jr. In May, 1948, petitioner’s wife took the son to California and the two lived in San Francisco with Elsie Barker until the wife’s death on June 15, 1949. Thereafter petitioner made efforts through his attorneys in California to have Elsie Barker deliver the custody of his son to him. Elsie Barker demanded compensation for the support given to the wife and son by her in San Francisco. On September 5, 1949, petitioner came to California. On September 13 petitioner filed a petition for habeas corpus in the superior court to obtain custody of his son and on September 16 the court issued a writ of habeas corpus directing Elsie Barker to deliver the son to petitioner at 5 p. m. on September 17.

Armed with this writ petitioner went to the home of Elsie Barker on September 17 to get his son and while there he was served with a summons and complaint in an action by Elsie Barker to recover from him the reasonable value of the support given by her to the wife and child.

[294]

Petitioner appeared specially and moved to quash the service of summons. In his supporting affidavit petitioner averred among other things:

“That on September 5, 1949, petitioner entered the State of California for the sole purpose of obtaining custody of his said son and with the intention of instituting whatever legal proceedings as should be required to accomplish this objective; that despite repeated requests the said Elsie Barker failed to deliver over custody of said child to petitioner and petitioner was required to and did file his petition for a Writ of Habeas Corpus ... on September 13, 1949 . . ..” Then follows a recital of the order of September 16 granting'the writ, its service on Elsie Barker on September 17 according to its terms and the service of the summons and complaint on petitioner at that time.

It is the general rule that parties and witnesses coming from outside the state to participate in the hearing of litigation in a court of the state are ordinarily exempt from the service of process in another action for a reasonable time in coming, attending court and leaving the jurisdiction; and (while a minority of courts have held otherwise) by the great weight of authority this privilege extends to parties plaintiff. (42 Am.Jur., Process, § 144, pp. 125-126;