Sherman v. Gundlach

• Decision Date: 14 June 1887
• Citation: 37 Minn. 118,33 N.W. 549
• Parties: SHERMAN v GUNDLACH.
• Court: Minnesota Supreme Court

37 Minn. 118

33 N.W. 549

SHERMANvGUNDLACH.

Supreme Court of Minnesota.

June 14, 1887.

(Syllabus by the Court.)

A resident of another state, who has in good faith come into this state to give evidence as a witness in a cause here, is exempt from service with a summons in a civil action against him, in coming, while in attendance, and for a reasonable time thereafter in which to return.

Appeal from municipal court, city of Minneapolis.

The defendant, Gundlach, a resident of the state of Iowa, came to this state for the purpose of attending, as a witness, the trial of a cause before the municipal court of the city of Minneapolis, a subpœna from said court having been served upon him at Albert Lea, in Freeborn county, Minnesota. While attending the trial, and pending the hearing of the cause, he was served with a summons in the present action. The court, BAILEY, J., having made an order vacating and setting aside the service of the summons, plaintiff appealed.

Merrick, Davenport & Thian, for Sherman, appellant.

C. N. Smith, for Gundlach, respondent.

MITCHELL, J.

The weight of authority in this country seems to be to the effect that a resident of another state or country, who has in good faith come into this state as a witness to give evidence in a cause here, is exempt from service with process for the commencement of a civil action against him. This privilege protects him in coming, in staying, and in returning, provided he acts bona fide, and without unreasonable delay. Person v. Grier, 66 N. Y. 124;Matthews v. Tufts, 87 N. Y. 568;In re Healey, 53 Vt. 694;Atchison v. Morris, 11 Biss. 191, 11 Fed. Rep. 582. This immunity does not depend upon statutory provisions, but is necessary for the due administration of justice. The object is to encourage witnesses from abroad to come forward voluntarily and testify. Non-residents cannot be compelled to attend. If they come at all, it must be voluntarily, for the service of a subpœna upon them would be an idle ceremony. If a party coming from another state to testify as a witness could be served with a summons in a civil action, the judgment in which would conclude him in all jurisdictions, the effect would be to deter him from coming at all. The same reasons for exempting a non-resident witness from arrest exist in favor of exempting him from the service of a summons in a civil action. Walpole v. Alexander, 3 Doug. 45. Neither does such an immunity work any injustice to any one; for, unless he...