Capwell v. Sipe

• Citation: 17 R.I. 475,23 A. 14
• Parties: CAPWELL v. SIPE et al.
• Decision Date: 01 August 1891
• Court: United States State Supreme Court of Rhode Island

23 A. 14

17 R.I. 475

CAPWELL

v. SIPE et al.

Supreme Court of Rhode Island.

Aug. 1, 1891.

Assumpsit. On demurrers to pleas in abatement.

Charles A. Wilson and Thomas A. Jenckes, for plaintiff.

Nicholas Van Slyck and Cyrus M. Van Slyck, for defendants.

PER CURIAM. The writ in this case is a writ of summons. The defendants have filed three pleas in abatement. The first sets forth that at the time of the service of the writ upon them the defendants were residents and citizens of the city of Cleveland, in the state of Ohio, and were in attendance upon this court in a suit in which At wood & Co. were plaintiffs and these defendants were defendants, and that these defendants were in the state of Rhode Island solely for the purpose of being in attendance upon said suit. The second plea is like the first, except that it Bets forth that the defendants were in attendance upon this court in a suit in which Atwood & Co. were plaintiffs and these defendants were defendants and material witnesses. The third plea is also like the first, except that it sets forth that the defendants were in attendance upon this court as witnesses in a suit at law entitled Atwood & Co. v. Sipe & Sigler, numbered 3,690, and omits the 111th allegation at the close, that the defendants were in the state of Rhode Island solely for the purpose of being in attendance upon said suit. To these pleas the plaintiff has filed a general demurrer.

In Baldwin v. Emerson, 16 R. I. 304, 15 Atl. Rep. 83, we held that a non-resident suitor, attending court in relation to his suit, was not exempt from the service of a writ of summons against him in another suit, not being within the reason of the rule adopted in New York and Minnesota, and, perhaps, in some other states, which exempts witnesses from such service. Perhaps, if it appeared that the party to the suit was a merely nominal party, without any personal interest in the suit, and was in attendance merely as such for the purpose of testifying, he would be entitled to exemption from the service of process by summons, for the same inducement might then be necessary to procure his attendance as though he was merely a witness. But we do not think that an ordinary suitor, who is personally interested in the result of the suit, though he may also testify in the trial as a witness, is on that account entitled to exemption. We are of the opinion, therefore, that the first and second pleas are insufficient.

The third plea sets forth that the defendants at the time of the service of the writ upon them were in attendance upon the court in the case of Atwood & Co. v. Sipe & Sigler, numbered 3,690, as witnesses. We think this plea would be good if it were sufficiently certain to answer the requirement of the rule relating to pleas in abatement. In regard to these the greatest strictness is insisted upon. The matter pleaded must be stated with the highest degree of certainty attainable in pleading, namely, with that degree which is known in law as "certainty to a certain intent in every particular." The reason for this rigorous requirement is that pleas of this sort,—"dilatory pleas," as they are now denominated,—the object of which is to defeat suits upon grounds other than the...