33 N.W. 549 (Minn. 1887), Sherman v. Gundlach

Citation:33 N.W. 549, 37 Minn. 118
Opinion Judge:Mitchell, J.
Party Name:Henry B. Sherman v. W. L. Gundlach
Attorney:Merrick, Davenport & Thian, for appellant. Carmen N. Smith, for respondent.
Case Date:June 14, 1887
Court:Supreme Court of Minnesota
 
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Page 549

33 N.W. 549 (Minn. 1887)

37 Minn. 118

Henry B. Sherman

v.

W. L. Gundlach

Supreme Court of Minnesota

June 14, 1887

Appeal by plaintiff from an order of the municipal court of Minneapolis, vacating and setting aside the service of the summons herein upon the defendant. It appeared that the defendant was at the time of the service a resident of the state of Iowa, but came into this state for the sole purpose of attending and testifying as a witness on a trial in the municipal court of Minneapolis, and was in actual attendance upon that court when the summons in this action was served. It further appeared that immediately upon the conclusion of the trial, the defendant left on the first train for his home in Iowa.

The order of the court below setting aside the service of the summons in this action is affirmed.

Merrick, Davenport & Thian, for appellant.

Carmen N. Smith, for respondent.

OPINION

Page 550

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 F. 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 subpoena upon them would be an idle ceremony. [37 Minn. 119] 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...

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