Case v. Case
| Decision Date | 11 July 1867 |
| Citation | 15 Mich. 537 |
| Court | Michigan Supreme Court |
| Parties | Ira W. Case v. John Rorabacher |
Heard July 9, 1867
Error to Livingston circuit.
This was an action upon a promissory note.
The defendant filed a plea, in substance, that he was attending the circuit court in a suit wherein he was a party defendant and while in such attendance that the summons in said suit was served upon him; and that he claimed exemption from the service of such process during such attendance. Plaintiff demurred to the plea. The demurrer was overruled and the plea sustained.
Demurer Sustained, and judgment reversed, with costs, and the defendant plead over within twenty days.
Norris & Uhl, for plaintiff in error:
The question presented is, can a suitor in attendance, in the county of his residence, upon a suit then pending and for trial, be served with a summons as commencement of another suit in the same court.
The demurrer was overruled upon the authority of the case of Lyell v. Goodwin, 4 McLean 29. This is not a case in point, and if it was, we must be permitted to doubt its authority.
We can find but one case directly in point in favor of the ruling below: Hays v. Shields, 2 Yeates 222 (1797).
A better reasoned case, directly the other way, is found in 1 Peters C. C., 222 (1809).
Most of the cases in which the matter is discussed are cases of privilege claimed from arrest: 4 Dall. 388, 107; 40 Eng. Com L., 464; 1 Dall. 296; 1 Binney 77; 9 Serg. and R., 150; 1 Miles 237; Andrews, 275; 1 N. J., 300 (Pennington); Coxes', 142; 6 Mass. 245, 264; 8 Johns. 350; 18 Id. 520; 4 Litt. 123; 2 Wend. 586.
It would seem that suitors have been, and would be, sufficiently well protected by restraining their arrest, and that the simple reading of a summons, inviting their attendance, by attorney, some weeks thereafter, is not a very formidable breach of their privilege, nor a dangerous contempt of court.
O Hawkins, for defendant in error.
Martin, Ch. J. did not sit.
Rorabacher, the defendant in error, having been sued by service of summons, pleaded in abatement that at the time of service he was attending court as a party to another lawsuit which had been noticed for trial at that term, and he therefore claimed privilege from such process. This plea was demurred to, and the demurrer was overruled, and error is brought upon that decision.
We are not prepared to say that cases may not exist where a party to a suit may be entrapped into attendance for vexatious purposes, and where service of process may not be an abuse to be relieved against. But we think any general exemption from service of process without arrest, merely because a party is attending court awaiting the trial of a cause, is unauthorized by any settled rule of law,...
To continue reading
Request your trial
-
Christian v. Williams
... ... The evidence being heard, ... the court gave this declaration of law: "That, under the ... pleadings and evidence in this case, the court has no ... jurisdiction of the persons of the defendants, and, ... therefore, cannot proceed to try the cause on its ... merits." And ... ...
-
Fisher v. Bouchelle, 10260
...attending court in counties of their residence are not entitled to immunity from service of civil process.' In the case of Case v. Rovabacher, 1867, 15 Mich. 537, it was held: 'There is no general exemption from the service of process without arrest, merely because a party is attending cour......
-
Berlet v. Weary
...for the legislative session to begin; for in that state a party is amenable to service while waiting for his case to be called. Case v. Rorabacher, 15 Mich. 537. Moreover, if we were, by judicial legislation, to extend to senators and representatives that exemption from the service of summo......
-
Wilson v. Donaldson
...v. Askew, 6 Hare, 319; Persse v. Persse, 5 H. L. Cas. 671. See, also, In re Cannon, 47 Mich. 481, 11 N. W. Rep. 280. The case of Case v. Rorabacher, 15 Mich. 537, is different. In that case the party claiming the privilege was attending court within the jurisdiction of his residence.” Very ......