17 NICS App. 41, YERBURY v. YERBURY (October 2019)
IN THE PUYALLUP TRIBAL COURT OF APPEALS
PUYALLUP INDIAN RESERVATION
TACOMA, WASHINGTON
David Yerbury, Petitioner/Appellant,
v.
Karmelle Yerbury, Respondent/Appellee.
NO. PUY-CV-AP-2019-0011 (October 2, 2019)
SYLLABUS*
Appellant argued trial court’s dismissal of his petition for dissolution of marriage due to lack of personal jurisdiction over appellee was made in error. Court of Appeals ruled trial court’s initial error occurred when court held appellee was properly served and that trial court should have taken no action on petition other than to hold that attempts of service on appellee were insufficient pursuant to code. Court of Appeals vacated trial court’s dismissal orders and remanded to trial court to require proper service on appellee.
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Before: |
Randy A. Doucet, Chief Judge; Ric Kilmer, Judge; Gregory M. Silverman, Judge. |
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Appearances: |
Christopher Torrone, for Appellant; Samuel J. Page, for Appellee. |
OPINION
Silverman, J.:
This matter comes before the Puyallup Tribal Court of Appeals pursuant to a Notice of Appeal filed February 13, 2019 by Appellant, David Yerbury, appealing a final order of the Puyallup Tribal Court, dated January 18, 2019, that dismissed without prejudice Appellant’s Petition for Dissolution of Marriage (“Petition”), filed on August 22, 2018, for lack of personal jurisdiction over the Appellee, Karmelle Yerbury. Appellant claims that the Court erred in dismissing the Petition for lack of personal jurisdiction. We agree.
17 NICS App. 41, YERBURY v. YERBURY (October 2019) p. 42
Background
On August 22, 2018, Appellant filed a petition for the dissolution of marriage. On September 20, 2018, the Court issued a summons in the present matter (“Summons”) and scheduled an initial hearing on the matter for October 30, 2018 at 2:30 p.m.
A third party personally served a copy of the Summons without the Petition on Ms. Yerbury at her residence outside the Puyallup Indian Reservation on October 3, 2018. Order Granting Motion To Dismiss; Order of Dismissal Without Prejudice (January 17, 2019) (“Order”), at 1. The Puyallup Tribal Code (“PTC”) requires that “[t]he summons, together with a copy of the complaint or petition, [] be served upon the defendant or respondent….” PTC 4.08.100(a). Accordingly, as the Summons was served without the Petition, the service was improper.
In her Answer to Petition for Dissolution of Marriage filed on October 23, 2018 (“Answer”), Appellee raised two affirmative defenses and moved to dismiss the Petition. The two affirmative defenses were that the Court lacks personal jurisdiction over the Appellee and that service of process on the Appellee was improper or insufficient. Answer at 6-7. Appellee also filed a separate Motion to Dismiss on October 30, 2018, challenging the Court’s subject matter jurisdiction over the matter and personal jurisdiction over her. In a supplemental declaration in support of the Motion to Dismiss, filed on the same day, Appellee also challenged the sufficiency of the service attempted on October 3, 2018 at her residence.
Recognizing that the service of process attempted on October 3, 2018 at the Appellee’s residence failed to comply with PTC 4.08.100(a), Appellant caused a third party, who was 18 years of age or older and not a party to the action, to personally deliver to the Appellee true copies of the Summons and the Petition at 1:59 p.m. on October 30, 2018, while Appellee was in the courthouse of the Puyallup Tribal Court waiting for the Initial Hearing to begin. Appellee had come onto the Puyallup Indian Reservation that day for the sole purpose of attending the Initial Hearing.
Discussion
The Appellant claims that the Court erred in dismissing the Petition for lack of personal jurisdiction over the Appellee. We agree that in so doing the Court erred.
In its Order dismissing the Petition, the Court held that the Appellee “was personally served pursuant to PTC 4.08.100(a).” Order, at 7. Section 4.08.100(a), entitled Service of Process, states, in relevant part, that “[t]he summons, together with a copy of the complaint or petition, shall be served upon the defendant or respondent by a Tribal Law Enforcement Officer or by any person over the age of 18 who is not a party to the action.”
Explaining its conclusion that the Appellee had been properly served pursuant to PTC 4.08.100(a), the Court wrote that the Appellee “was personally served with the summons and a copy of the petition on October 30, 2018 at the Puyallup Tribal Court 1451 E. 31st Street, Tacoma, Washington 98404.” Order, at 7. Having concluded that service was proper, the Court then noted that its “inquiry does not end with whether service was proper.” Id. The Court, it
17 NICS App. 41, YERBURY v. YERBURY (October 2019) p. 43
continued, “must also determine whether the parties fall within the scope of the Tribe’s personal jurisdiction.” Id. With this transition, the Court then considered whether the Court had personal jurisdiction over the Appellee. The Court concluded that it did not and ordered the Petition dismissed without prejudice.
For present purposes, we need not consider the Court’s discussion of personal jurisdiction because the Court’s pivotal error occurred prior to this discussion. The Court erred in holding that the Appellee had been personally served pursuant to PTC 4.08.100(a). She had not. While the personal delivery in the courthouse of true copies of the Summons and the Petition to the Appellee by a third party who was over 18 years of age and not a party to the action does appear on its face to satisfy the requirements of PTC 4.08.100(a) for proper service of process, it does not do so.
It is a long-settled rule in most jurisdictions that a witness or nonresident party defendant, who is in the jurisdiction solely to testify or defend a lawsuit, is immune from civil process, whether of a subpoena or of a summons and complaint. “Suitors and witnesses coming from foreign jurisdictions for the sole purpose of attending court, whether under summons or subpoena or not, are usually held immune from service of civil process while engaged in such attendance and for a reasonable time in coming and going.” Edson Sunderland, Process in 32 Cyclopedia of Law and Procedure 492 (William Mack, ed. 1901-1912). “A nonresident party defendant is entitled to exemption from service of process for the commencement of a civil action against him, while in the state defending a suit pending against him in its courts.” Long v. Hawken, 114 Md. 234 (1911). “It is, perhaps, not too much to say that no rule of practice is more firmly rooted in the jurisprudence of the United States courts than that of the exemption of persons from the writ of arrest and of summons while attending upon courts of justice, either as witnesses or suitors.” Hale v. Wharton, 73 Fed. 739, 740 (1896).
[F]rom the earliest times it has been the policy of the common law that witnesses should be produced for oral examination, and that parties should have full opportunity to be present and heard when their cases are tried. It is in furtherance of that policy and the due administration of justice that suitors and witnesses from abroad are privileged from liability to other criminal and civil prosecution, eundo, morando, et redeundo [going, remaining, and returning].
Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 380 (1910). The immunity of a nonresident party defendant or witness from service of process is:
founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. Witnesses would be chary of coming within our jurisdiction, and would be exposed to dangerous influences, if they might be punished with a lawsuit for displeasing parties by their testimony; and even parties in interest, whether on the record or not, might be deterred from the rightfully fearless assertion of a claim or the rightfully fearless assertion of a defence, if they were liable to be visited on the instant with writs from the defeated party.
17 NICS App. 41, YERBURY v. YERBURY (October 2019) p. 44
Parker v. Hotchkiss, 18 F. Cas. 1137, 1138 (C.C.E.D. Pa. 1849).
The case of Kelly v. Pennington et al., 70 Colo. 482 (1926) is almost directly on point. Gibbs, a Nebraska resident, had entered Colorado solely to appear as a witness for the defendant Pennington in the trial of this case. During the trial in Denver, Kelly caused a summons and complaint for this case to be personally delivered to Gibbs in an attempt to make him a co-defendant in this very same case. The court quashed the service of the summons “upon the ground that civil process could not be served upon him as a nonresident witness while going from Nebraska to Denver, or while in attendance in Denver at the trial of the suit, or while returning from Denver to his home in Nebraska.” Id. at 483. Significantly for the present appeal, “while conceding that the larger number of cases in this country are against him,” counsel for Kelly had argued that “the rule is a harsh one, and should be confined strictly to exemption from civil process in some new action or action other than the one to testify in which the witness came to the state.” Id. at 484. The Court rejected this argument, stating that:
[t]hough in some of the cases the opinions do state that, while a nonresident suitor or defendant is in attendance in the courts of another state, as a suitor or witness, he is immune from the service of process in another or a new action, yet the same cases, in stating the general rule, do not limit its application to another or new action, but say that the exemption is from service of civil process in any action.
Id. at 484-85. In other words, the court held that the immunity from service of process includes immunity from service for the action in which the nonresident party defendant or witness is appearing.
There are two recognized exceptions to the rule that witnesses and nonresident party defendants are immune from service of process while in the jurisdiction solely to testify in or defend a lawsuit. The first concerns a criminal defendant: “From time immemorial, it has been the law that persons actually in custody under criminal process are not exempt from service of process in civil suits.” Netgraph Manufacturing Co. v. Scrugham, 197 N.Y 377, 381 (1910). This exception to the rule is grounded in the reason for the rule itself:
Since the obvious reason of the rule is to encourage voluntary attendance upon courts, and to expedite the administration of justice, that reason fails when a suitor or witness is brought into the jurisdiction of a court while under arrest or other compulsion of law. Such a suitor or witness does nothing to encourage or promote voluntary submission to judicial proceedings. He comes because he cannot do otherwise.
Id. at 380.
The second exception is when the case for which the nonresident defendant is being served, while nominally a new action, is in reality and for all intents and purposes simply an extension or continuation of the action in which the nonresident party defendant is already appearing. This exception was recognized by the United States Supreme Court in Lamb v. Schmitt, 285 U.S. 222 (1932). Like the first exception, this exception to the rule is also grounded in the reason for the rule itself. Quoting from Parker v. Hotchkiss, supra, Justice Stone wrote:
17 NICS App. 41, YERBURY v. YERBURY (October 2019) p. 45
‘The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.’ It follows that the privilege should not be enlarged beyond the reason upon which it is founded, and that it should be extended or withheld only as judicial necessities require.
Id. at 225 (citation omitted).
In Lamb v. Schmitt, the question presented was “[w]hether, despite any effect of the immunity in encouraging voluntary attendance at the trial, it should be withheld from one who, while in attendance, is served with process [for a related second action] commanding his continued presence and aid to facilitate the pending litigation, and to carry it to its final conclusion? Id. at 226. Justice Stone, writing for the Court, concluded that when the second action is so closely related to the first, then the due administration of justice requires that the immunity be withheld. He wrote:
It has never been doubted that witnesses, parties, and their counsel are amenable to the process or order of the court for contempt of court, committed while in attendance upon the trial, or that any of them, while there, are subject to the process and orders of the court to compel the production of documents or their testimony in the cause. Nor can it be doubted that the petitioner here, notwithstanding his presence as an attorney and officer of the court in the conduct of the principal cause, was not immune from the service of process in a summary proceeding to compel restoration of the subject-matter of the suit wrongfully removed from the custody of the court. The deterrent effect, if any, upon attendance at the trial, of the possibility that these procedures may be resorted to, is outweighed by the fact that the immunity, if allowed, might paralyze the arm of the court and defeat the ends of justice in the very cause for the protection of which the immunity is invoked.
Id. (citation omitted).
The rule that nonresident party defendants or witnesses are immune from service of process while coming, attending, and leaving court, so long as they were in the jurisdiction for the sole purpose of attending court, as well as the two exceptions to this rule discussed above, are grounded in sound and compelling policies essential to the due administration of justice. Accordingly, to promote the ends of justice for the people of the Puyallup Tribe of Indians and others who come within the jurisdiction of this Court, this doctrine and its two exceptions, are recognized and acknowledged as a privilege of the Puyallup Tribal Court.
Applying this doctrine to the present case, it is immediately apparent that the Appellant’s attempt to serve by personal delivery copies of the Summons and Petition on the Appellee, when she entered the Puyallup Indian Reservation for the sole purpose of attending this Court, must fail. It is also clear, as already noted, that the first attempt at service of process by leaving the
17 NICS App. 41, YERBURY v. YERBURY (October 2019) p. 46
Summons without the Petition at the residence of the Appellee must fail as well because it violated the express requirements of PTC 4.08.100(a). Having twice failed to properly serve the Summons and Petition, the Appellant has yet to cause a sufficient and proper service of process to be made on the Appellee. Accordingly, the Tribal Court erred when it concluded that the Appellee had been served pursuant to PTC 4.08.100(a).
This first error led to a second. Without a sufficient and proper service of process on the Appellee, the Tribal Court should have taken no action on the Appellant’s Petition other than to hold that the Appellant’s two attempts at service were improper. In particular, it should not have dismissed the Appellant’s Petition for lack of personal jurisdiction.2 Instead, after holding that the Appellant’s two attempts at service were improper, the Court should simply have allowed the action to stand so that the Appellant could continue to attempt proper service pursuant to either PTC 4.08.100, Service of Process, or PTC 4.08.110, Long Arm Service, of the Puyallup Tribal Code.
Order
For the foregoing reasons, we hereby (1) vacate the Tribal Court’s Order Granting Motion To Dismiss; Order of Dismissal Without Prejudice, dated January 17, 2019; (2) remand the present matter to the Tribal Court; (3) require the Appellant to properly serve the Appellee under either PTC 4.08.100 or PTC 4.08.110; and (4) if proof of service is not filed with the Tribal Court within 90 days of the date hereof, direct the Tribal Court to dismiss the Petition for failure of prosecution.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
In fairness, we must admit that Appellee contributed to this second error when it moved to dismiss the Petition rather than moving to quash the service of process as improper.