Bunce v. Humphrey

• Decision Date: 26 January 1915
• Parties: BUNCE v. HUMPHREY.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 21

108 N.E. 95

BUNCE

v.HUMPHREY.

Court of Appeals of New York.

Jan. 26, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Albert A. Bunce against Charles F. Humphrey. From an order of the Appellate Division (163 App. Div. 887,147 N. Y. Supp. 1101), affirming an order denying a motion to set aside the service of a summons, defendant appeals by permission. Reversed. Motion to set aside service of summons, granted, and questions certified answered.

See, also, 163 App. Div. 951,148 N. Y. Supp. 1108.

Robert T. Oliver, of New York City, for appellant.

Charles R. Bradbury, of New York City, for respondent.

HISCOCK, J.

This appeal involves an application to set aside the service of a summons made on the defendant while he was in attendance at a term of the United States District Court in the city of New York, such attendance at the immediate time of the service being commanded by a subpoena. The question whether such summons could be properly served on him at the time that it was requires only the determination whether certain general and fundamental principles are applicable to the facts which appear in this case .

[1] The defendant was a resident of the state of California, but was in Germany. On the request of the Attorney General of his representative he voluntarily came from Germany to New York for the purpose of being a witness in a prosecution then being conducted in the name and behalf of the United States, and after he had thus voluntarily come within the jurisdiction of the court he was served with a subpoena requiring him to remain in attendance as a witness in that case until dismissed by the court or the Attorney General. At the time when the summons was served on him the case had been submitted to the jury, but the latter had not as yet rendered its verdict. In view of the circumstance that the case had not been terminated by a verdict, we think there is nothing in the contention of the respondent that any grace which the defendant might have enjoyed during the pendency of the trial had expired, and that he should have left the state before the service was made, and we shall not give further consideration to that contention.

[2] Much might be written concerning the rules which, under varying conditions, temporarily exempt a party from service of civil process, but I think that the principles which are to be considered here may be very briefly stated as they were approved in the recent case of Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 380, 90, N. E. 962, 963 (27 L. R. A. [N. S.] 333, 134 Am. St. Rep. 886). Referring to this right of exemption, it was said:

‘It is not a natural right, but a privilege which has its origin in the necessity for protecting courts from interruption and delay, and witnesses or parties from the temptation to disobey the process of the courts. * * * It is not only not a natural right, but it is in derogation of the common natural right which every creditor has to collect his debt by subjecting his debtor to due process of law in any jurisdiction where he may find him. The privilege should therefore not be extended beyond the reason of the rule upon which it is founded. Since the obvious reason of the rule is to encourage voluntary attendance upon courts and to expedite the administration of justice, that reason fails when a suitor or witness is brought into the jurisdiction of a court while under arrest or other compulsion of law. Such a suitor or witness does nothing to encourage or promote voluntary submission to judicial proceedings. He comes because he cannot do otherwise. That seems to be the basis for the exception to the seems to be privilege which is illustrated in cases where persons are brought into the jurisdiction of a court under extradition from other states or foreign countries. * * * The privilege is held not to exist in such cases.’

I assume that it would not be disputed that the rule would be applicable and the defendant be exempt under it from service if he had...