Cameron v. Roberts

• Decision Date: 16 March 1894
• Citation: 58 N.W. 376,87 Wis. 291
• Parties: CAMERON v. ROBERTS ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 291

58 N.W. 376

CAMERON

v.ROBERTS ET AL.

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Suit by Mary E. Cameron against John Roberts and George P. Harrington to restrain defendant from proceeding with an action of unlawful detainer. A motion by defendants to set aside the service was denied, and they appeal. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Roberts commenced an action of unlawful detainer before the defendant Harrington, a justice of the peace, against the plaintiff and one Mrs. Fatzinger. Upon the return day of the summons, while Justice Harrington was holding court, and engaged in the disposition of causes, and Roberts was present in court as a party and as a witness, awaiting the trial of his cause, a summons, complaint, and injunctional order in an action in equity brought by Mrs. Cameron were served on Roberts and Harrington. The injunctional order restrained both defendants from proceeding in the unlawful detainer action, and the object of the action was to obtain a permanent injunction to the same effect. Roberts and Harrington appeared specially in the equity action, and, upon affidavits showing the foregoing facts, moved that the service be set aside. The motion was denied, and the defendants appealed.Turner & Timlin, for appellants.

Henry L. Buxton, for respondent.

WINSLOW, J. (after stating the facts).

The service should have been set aside. The service of process upon a justice while holding court, or upon a party and witnesses in attendance upon, and in the presence of, the court, was a contempt of court. Cole v. Hawkins, And. 275; 1 Greenl. Ev. § 316. “It has long been settled that parties and witnesses attending in good faith any legal tribunal * * * are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning.” Larned v. Griffin, 12 Fed. 590, and cases cited. The privilege extends to the service of a summons, as well as to arrest. Miles v. McCullough, 1 Bin. 77;Atchison v. Morris, 11 Fed. 582;Person v. Grier, 66 N. Y. 124; Lyell v. Goodwin, 4 McLean, 29 Fed. Cas. No. 8,616; Anderson v. Rountree, 1 Pin. 115. The reasons for the rule are manifest. No court should be subject to such interruptions. Parties necessarily in attendance upon court should be free to attend to their duties without disturbance or fear of it. The rule is made to subserve...