In re Ball

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[Crim. No. 2640. Second Appellate District, Division Two. December 4, 1934.]

In the Matter of the Application of E. R. BALL for a Writ of Habeas Corpus.


Leland S. Bower for Petitioner.

Roderick B. Cassidy and Rex Boston for Respondent.


Stephens, P. J.

Petitioner was legally confined to the county jail unless personal service of process from the railroad commission had not been made.

The facts are as follows: Petitioner, an active business man, had been in litigation before the commission theretofore and had had legal papers from the commission served upon him which were of similar appearance to the process in this proceeding. The process server, who had previously served petitioner, approached the petitioner at the same place he had formerly served him and when within about [2 Cal. App. 2d 579] twelve feet of him, and with the process in his hand, said: "I have here another one of those things for you." Petitioner replied: "You have nothing for me" and started to walk away. While petitioner was moving away in a sidewise manner and looking at the server, the server handed or tossed the process toward petitioner, it falling a few feet from him, at the same time saying, "Now you are served." Petitioner did not pick it up but continued to walk away from the premises.

[1] The commission assumed the jurisdiction sought to be obtained by personal service of the process and we think rightfully so. In the first place the commission is its own judge as to the service of its process and we cannot interfere with this power unless the facts should fail to show any substantial evidence of service.

[2] We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand.

The writ is discharged and petitioner is remanded.

Crail, J., and Scott, J., pro tem., concurred.