Bearman v. Hunt

• Decision Date: 02 April 1918
• Docket Number: Case Number: 8637
• Citation: 68 Okla. 96,171 P. 1124,1918 OK 182
• Parties: BEARMAN et al. v. HUNT, County Judge, et al.
• Court: Oklahoma Supreme Court

1918 OK 182

171 P. 1124

68 Okla. 96

BEARMAN et al. v. HUNT, County Judge, et al.

Case Number: 8637

Supreme Court of Oklahoma

Decided: April 2, 1918

Syllabus

¶0 1. Process -- Exemption from Service -- Witness.

One who is in good faith attending court as a material witness, or as a suitor, in a county other than that of his residence, is exempt from service of summons in an action brought in that county, though his attendance is not in obedience to a subpoena.

2. Process--Summons--County.

If service of summons is not legally obtained on one of several defendants, in the county where the action is brought, a summons cannot be issued thereon to any other county, and there be legally served on any one or more of the codefendants.

Error from District Court, Wagoner County; Chas. G. Watts, Judge.

Suit by W. T. Hunt, County Judge of Wagoner County, Okla., trustee for Melissa Byrd, and by Melissa Byrd, in her own right, against J. A. Bearman and others. Judgment for plaintiffs, and defendants bring error. Reversed, with instructions.

F. B. Righter, for plaintiffs in error.

P. L. Newton, for defendants in error.

TISINGER, J.

¶1 On December 8, 1914, defendants in error, W. T. Hunt, county judge of Wagoner county, trustee for Melissa Byrd, and Melissa Byrd, in her own right, filed suit in the district court of Wagoner county, against the plaintiffs in error, J. A. Bearman, A. L. Law, L. T. Tryon, and F. B. Righter, as defendants, to recover on a joint and several promissory note given by the defendants to the county judge of Wagoner county, Okla. On the same day the suit was filed, summons was issued out of said court and served on the defendants Bearman, Tryon, and Righter, and they each afterwards made special appearance and filed their separate motions to quash the issuance and service of such summons, on the ground that, at the time the summons was issued and served in Wagoner county, they were residents of Tulsa county, and were attending district court in Wagoner county, as material witnesses and parties litigant in cases pending in that court. The motion of each of said three defendants to quash the issuance and service of the summons on him was supported by his affidavit corroborating the allegations contained in his motion and was uncontroverted.

¶2 These facts show that all of the defendants were residents of the town of Broken Arrow in Tulsa county at the time they were served in Wagoner county with the summons on the 8th day of December, 1914. The defendant Bearman was at that time in attendance on the district court of Wagoner county, as one of the parties plaintiff in a case pending in that court, set for trial on that day. He was also in attendance on that court as a material witness in another case set for trial on the 7th and 8th days of December, 1914. The defendant Righter was also at that time in attendance on said court, as one of the parties plaintiff in a case pending in that court set for trial on that day. He was also in attendance on said court as a material witness in another case, pending in that court, and testified as such material witness on the 7th day of December, 1914. The defendant Tryon was at that time cashier of the Citizens' National Bank of Broken Arrow, and was in attendance on said court, and had with him the books and papers of the bank, for the purpose of using them and testifying as a material witness in a case pending in that court, set for trial and heard and disposed of on that day. The separate motions of these defendants, supported by their affidavits, were heard and overruled by the court. The defendants refused to further plead, and the court reserved final judgment in the case until after service of summons could be made on the remaining defendant, Laws. The defendant Laws was thereafter served with summons in Tulsa county, the county of his residence, and in due time entered his special appearance, and filed his separate motion supported by his affidavit, to quash the issuance and service of the summons on him, on the ground that the district court of Wagoner county had not acquired jurisdiction of the persons of his codefendants. The court overruled the motion of this defendant, and he refused to further plead. Whereupon the court adjudged all the defendants to be in default and rendered judgment in favor of the plaintiffs and against all the defendants as prayed for.

¶3 The legal questions involved in this suit may be stated as follows:

Can a person be sued, in an ordinary action, in a county other than the county of his residence, while he is in good faith attending court in such other county, either as a material witness, or as a party litigant in pending litigation, provided he in a proper manner and at the proper time claims his exemption and immunity from service of summons in such county?

¶4 Article 4, vol. 2, Rev. Laws 1910, relates to the venue of actions, and, after a number of sections dealing with various classes of actions, section 4679 is as follows:

"Every other action must be brought in the county in which the defendant, or some one of the defendants, reside or may be summoned."

¶5 That statute seems to be limited by section 5064, Rev. Laws 1910, which reads:

"A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county, while going, returning or attending, in obedience to a subpoena."

¶6 These statutes were a part of the Code of Civil Procedure of the state of Kansas, and were adopted by our territorial Legislature in 1893. They have remained a part of our statute law of Civil Procedure, unaltered and unchanged, until the present time.

¶7 It is the common-law rule that when a person is in good faith attending court, either as a litigant or witness, in a county other than that of his residence, he is privileged from the service of a summons in an action brought in that county. This privilege is extended to him while attending court and for such reasonable time, before and after, as may enable him to come from and return to his home, on the ground that justice requires the attendance of witnesses cognizant of material facts and that no unreasonable obstacles should be thrown in the way of their freely coming into court to testify, and that parties litigant should be free to prosecute or defend their actions in jurisdictions other than the county of their residence without being embarrassed and hampered by having suits filed against them while attending court for such purpose.

¶8 In the well-considered case of Underwood v. Fosha, 73 Kan. 408, 85 P. 564, 9 Ann. Cas. 833, the Supreme Court of Kansas, construing the statutes of that state, identical with the two statutes of this state, hereinbefore set out, as applied to facts similar to the facts in the case at bar, says:

"It is a familiar rule of law, generally although not universally accepted, that apart from any statutory immunity all nonresidents of a county in which they are attending court proceedings, either as litigants or witnesses, are privileged from civil arrest or the service of summons while there upon that business. Cases bearing upon this question are collected in a note at page 721 of volume 25 of the Lawyers' Reports, Annotated, and under the title 'Process,' in volume 40 of the Century edition of the American Digest, sections 148 and 150. The reason of the rule is that the efficient administration of justice in the courts is promised by encouraging the personal attendance upon trials not only of the parties in interest but of other witnesses as well, the removal or the risk of being put to the inconvenience of defending a lawsuit away from home being manifestly a substantial contribution to this end. In this connection it was said, in Ela v. Ela, 68 N.H. 312, 36 A. 15; 'The right to take the deposition of a nonresident witness does not answer the requirements of justice. It is often indispensable to a just decision of a cause, and is always desirable, that testimony shall be given orally in open court. The triers are more likely to understand the testimony fully and correctly. The appearance of the witness aids materially in forming a correct judgment of the credibility and weight of his testimony. All the issues of fact that may arise at the trial can seldom be foreseen. A fact within the knowledge of a witness may appear to be so foreign to the case when his deposition is taken that it is not deemed worth while to question him upon it, and yet the course of the trial may be such that it is the fact which will control the verdict. See Metcalf v. Gilmore, 63 N.H. 174, 186-189. Every reasonable facility should therefore be provided for obtaining the attendance of witnesses in person.' 'These and other considerations have led to the establishment, quite generally, of the doctrine that nonresident witnesses are privileged from liability to be sued while attending the trial, and going to and returning from it.' Page 313 of 68 N.H. (36 A. 15). "

¶9 Continuing, the court says:

"There is no doubt that the later and just tendency of the courts is to extend rather than to restrict the privilege referred to. * * *

"The

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