Atchison v. Morris

• Decision Date: 06 March 1882
• Parties: ATCHISON v. MORRIS.
• Court: U.S. District Court — Northern District of Illinois

11 F. 582

ATCHISON v. MORRIS.

United States Circuit Court, N.D. Illinois.

March 6, 1882

Quigg &amp Tuthill, for complainant.

Doolittle & McKey, for defendant.

DRUMMOND C. J.

The defendant, a resident of the town of Sharon, Walworth county Wisconsin, on the seventh day of February last was subpoenaed, under section 876 of the Revised Statutes of the United States, as a witness in this court on the trial of a cause then pending. In obedience to the subpoena he attended court, and while in Chicago, on the ninth day of February was served with a writ of summons in this state. The parties in this suit, and in the suit formerly pending in this court were all different. This cause has been duly removed from the superior court to this court under the act of congress, and an application is now made to set aside the service. It is founded upon an affidavit, from which, and from the admissions of the parties, it appears that the defendant presented himself in court to testify as a witness on the subpoena served upon him; and that while in Chicago, thus in attendance on the court, and before the trial of the case, the summons in this case out of the superior court was served upon him. If the privilege of a witness operated at all upon the defendant, it would protect him so as to give him a reasonable time after the disposition of the cause to go home. It is not claimed in this case that there was any effort to influence the witness to come to Chicago with a view of having the summons served upon him; and the general question in the case may be considered to be this: Whether a person who attends a court in this state as a witness; being a resident of another state, is, while thus in attendance as a witness, subject to the service of summons in a civil action. All admit he is not subject to arrest while thus in attendance as a witness, or while coming or going. The only difficulty is whether he can be served with process of summons; and I have come to the conclusion that he cannot.

It is not necessary to go through all the cases upon the subject, but a few of them may be referred to. In some of the states it has been decided that the privilege of a witness is limited to the case of freedom from arrest. Catlett v. Morton, 4 Littell, 122; Legrand v. Bedinger, 4 T.B.Mon. 539; Sadler v. Ray, 5 Rich. 523; Hunter v. Cleveland, 1 Brevard, 167; Page v. Randall, 6 Cal. 32.

In New York and Pennsylvania it is held that the privilege extends, in such a case as this, to freedom from the service of civil process on the witness. Norris v. Beach, 2 Johns. 294; Hayes v. Shields, 2 Yeates, 222; Person v. Grier, 66 N.Y. 124; Seaver v. Robinson, 3 Duer, 622; Coburn v. Hopkins, 1 Wend. 292; Taft v. Hoppin, Anthon, Nisi Prius Rep. 255; Sanford v. Chase, 3 Cow. 381.

In Coburn v. Hopkins the court refers to a distinction between the case of a witness resident in the state and one who is a non-resident witness, and attends in the courts of New York. See Parker v. Hotchkiss, 1 Wall.Jr. 269, for other cases decided in Pennsylvania.

In the federal courts the weight of authority seems to be in favor of the more liberal view of the subject. In Lyle v. Goodwin, 4 McLean, 29, the question is not presented entirely free from every other consideration, because in that case the service was made while the person (a judge of the supreme court of the state) was actually engaged in the performance of his judicial duties; and therefore it might be said that he was in the same condition as a witness who was in actual attendance in court. If a judge were upon the bench and transacting business in court, it would not, I presume, be claimed that he could be then served even with a summons; but the reasoning of the court in Lyle v. Goodwin is in accordance with the rulings of the cases in Pennsylvania and New York. In the case of Lyle v. Goodwin, 4 McLean, 44, another case with the same parties, Judge McLean apparently did not follow all the reasoning of the district judge of the court in the other case; and he held that the service on the defendant in that case, while not actually engaged in the performance of his judicial duties, though about to depart for that purpose, was good.

In Blight v. Fisher, Pet. C.C. 41, Mr. Justice Washington held that the privilege of a suitor or witness extended only to exemption from arrest. In Parker v. Hotchkiss, already cited, the case of Blight v. Fisher is overruled by Judge Kane, and, as he says, with the concurrence of Mr. Justice Grier and Chief Justice Taney, of the supreme court of the United States. That was a case where the suit in which the person claimed exemption had been dismissed and a summons was issued on the same day and served on him at his lodgings; and, as already stated, the cases in Pennsylvania are cited and approved.

In Juneau Bank v. McSpedan, 5 Biss. 64, the court decided that where a non-resident defendant came within the state as a party for the purpose of defending his suit, although the prior suit had been first dismissed; that is to say, he was entitled to his privilege as a party coming, remaining, and going. The court, in Brooks v. Farwell, 4 F. 166, decides the question in the same way.

In Wilder v. Welsh, 1 McArthur, 566, the court held that the privilege of a witness in attendance upon a congressional committee was no higher than that of a member of congress and that he might be served with summons as a defendant in a suit commenced in that court. A member of congress is, by the...