Baldwin v. Emerson

• Decision Date: 14 July 1888
• Citation: 15 A. 83
• Parties: BALDWIN v. EMERSON.
• Court: Rhode Island Supreme Court

15 A. 83

BALDWIN

v. EMERSON.

Supreme Court of Rhode Island.

July 14, 1888.

Exceptions to court of common pleas.

Charles F. Baldwin and Irving Champlin, for plaintiff. Edward D. Bassett, for defendant.

MATTESON, J. This is an action of assumpsit, brought in the court of common pleas, the writ in which was sued by summoning the defendant. The defendant pleaded in abatement of the suit that, at the time of the service, he was a citizen of Boston, Mass., and was in attendance upon this court in a suit in which he was plaintiff, and the present plaintiff was defendant. The plaintiff demurred to the plea, and the defendant joined in the demurrer. The court, upon hearing, sustained the demurrer, and overruled the plea. The defendant thereupon excepted, and now petitions for a new trial, alleging that the ruling was erroneous.

The question whether a party in attendance upon a court in the prosecution or defense of a suit is privileged from the service of a summons for the commencement of a suit against him is one upon which there has been a contrariety of decision. The general rule relating to protection from the service of process is that all persons who have any relation to a cause which calls for their attendance in court are protected from arrest while going to and attending court and returning. This protection, however, is not wholly, nor chiefly, the privilege of the person, but is granted in the interest of the public, that the courts may not be embarrassed or impeded in the conduct of their business. Hence it has generally been held that the protection is limited to exemption from arrest, and does not extend to the service of process, which does not interfere with or prevent the attendance of the person upon the court. Bours v. Tuckerman, 7 Johns. 538; Hopkins v. Coburn, 1 Wend. 292; Hunter v. Cleveland, 1 Brev. 167; Sadler v. Ray, 5 Rich. Law, 523; Legrand v. Bedinger, 4 T.B. Mon. 539; Grove v. Campbell, 9 Yerg. 7; Page v. Randall, 6 Cal. 32. In Hayes v. Shields, 2 Yeates, 222, and Miles v. McCullough, 1 Bin. 77, however, it was held that exemption should be granted from summons as well as arrest; the reasons assigned in the former case being that the party's attention to his own business in the suit depending would be distracted by the service, and he might be subjected to the inconvenience of attending an action at a distance from his place of abode, contrary to the wise indulgence of the law. In some of the cases the question whether non-residents of the state attending court are entitled to protection from the service of a writ by summons for the commencement of a suit has been considered. In Bishop v. Vose, 27 Conn. 1, the defendant, a resident of another state, had come into Connecticut to attend the trial of a suit which he had caused to be brought in one of the courts of that state, and it was held that he was not exempt from the service of a summons; the fact that he came from another state not putting him on any better footing than if he had been a resident of the state. Subsequently it was held in Machine Co. v. Wilson, 22 Fed. Rep. 803, 51 Conn. 595, that a non-resident defendant, who was in attendance upon the court in the trial of his case, his presence being necessary, both as a witness and for the purpose of instructing his counsel, was protected from the service by summons of a new writ against him. The court, however, expressly limited its decision to the case of a non-resident defendant, suggesting that there is, perhaps, a reason why a plaintiff who has voluntarily sought the aid and protection of the courts of another state should not shrink from being subjected to their control, which does not apply to a defendant whose attendance is compulsory. In New York, while it has been held that the protection is from arrest only, and not from service of a summons, an exception has been made in favor of non-resident witnesses. Norris v. Beach, 2 Johns. 294; Sanford v. Chase, 3 Cow. 381; Hopkins v. Coburn, 1 Wend. 292; Seaver v. Robinson, 3 Duer, 622; Pollard v. Railroad Co., 7 Abb. Pr. (N. S.) 70; Person v. Grier, 66 N. Y. 124; Jenkins v. Smith, 57 How. Pr. 171. The grounds upon which this exception rests are that witnesses from out of the state, being beyond the reach of subpoena, cannot be compelled to attend. Hence, if they attend at all, their attendance must be voluntary; and, as their attendance is often necessary for the ends of justice, especially in criminal trials in which the accused is entitled to be confronted with the witnesses against him, and as the liability to be served with summons for the commencement of a suit in another jurisdiction than that of their residence might as effectually deter them from attending as the liability to arrest, public policy requires that they should be protected against such service as well as arrest,...