Central Ry Signal Co. v. Jackson

• Decision Date: 03 January 1917
• Citation: 238 F. 625
• Parties: CENTRAL RY. SIGNAL CO. et al. v. JACKSON.
• Court: U.S. District Court — Eastern District of Pennsylvania

238 F. 625

CENTRAL RY. SIGNAL CO. et al. v. JACKSON.

United States District Court, E.D. Pennsylvania.

January 3, 1917

Wm Steell Jackson, of Philadelphia, Pa., for plaintiffs.

Howson & Howson, of Philadelphia, Pa., for defendant.

DICKINSON District Judge.

The defendant invokes no right of his own. At the most he becomes the beneficiary, through receiving the practical benefits, of a rule of policy followed by the courts when deemed applicable. The rule is that no court will brook unwarranted interference by others with the orderly process of judicial proceedings before it. It recognizes the necessity for the enforcement of a like rule by other courts. It therefore applies the doctrine of comity, at least to the extent that it will not sanction the use of its process to interfere with what another court is seeking to do where, under like circumstances, it would not suffer its own proceedings to be hampered by the interference of others. In short, the principle is to voluntarily accord to others what you would insist upon as your right to receive from others. An important duty of the court in every proceeding before it is to have the facts fully developed. These often can be established only through the testimony of witnesses. Out of this grow two duties and correlative rights:

One is to render aid to another court in securing evidence from the testimony of witnesses, and the right to expect that like aid and assistance will be rendered by another court. Out of this has sprung the practice of issuing letters rogatory and subpoenas to assist in the taking of testimony outside of the jurisdiction of the court in which the evidence is to be offered. This practice is facilitated and enforced sometimes through the adoption of rules by the courts and sometimes by statutes. Another is to protect parties and witnesses by securing to them immunity from the service of process while in attendance upon the court and in going and returning. The policy of thus promoting attendance upon the court is obvious. Out of this has sprung the practice of a resort to even the drastic procedure of contempt process where the interference affects the court, and of setting aside the service of its own process where the interference is with the work of other courts. The general guiding principle is thus clear enough, but because of its generality there can be no very hard and fast rule in its application to the facts of a particular case. The rule is neither a whimsical nor a purely abstract one. It has a practical purpose and should be given a practical application.

Where nothing more is gained than a formal acknowledgment of a theoretical right, compliance with the rule may not be enforced. If, for instance, a defendant is served within his home jurisdiction, where he is open to service, to set it aside merely because he happened to be encountered by the process server when going to or returning from court would be to make of the rule a mere formality. To take advantage of the presence of a defendant in a foreign jurisdiction, where he had gone simply to facilitate the work of the court, would call for all the protection which the court could give him or the very policy back of the rule would be defeated.

This brings us to the facts of the present case. The defendant was concerned with a patent application pending before the patent examiner. His testimony was thought to be important, and it was arranged to take it by depositions before a notary public in Philadelphia. The subpoena and bill in the present case were served during the taking of the deposition. Affidavits have been submitted in answer to the present rule for the purpose of showing the domicile of the defendant to have been here and this to be his home jurisdiction. There is no averment, however, of a present residence here, and no denial that he came into this jurisdiction solely to attend at a hearing here and to testify. The weight of precedent seems to incline toward setting aside the service. The following cases in the courts of the United States may be considered typical Bridges v. Sheldon (C.C.) 7 Fed. 17; Atchison v. Morris (C.C.) 11 F. 582; Nichols v. Horton (C.C.) 14 F. 327; Wilson v. Wilson (C.C.) 22 F. 803; Kauffman v. Kennedy (C.C.) 25 F. 785; Holyoke v. Ambden (C.C.) 55 F. 593, 21 L.R.A. 319; Hale v. Wharton (C.C.) 73 F. 740; Skinner v. Waite, (C.C.) 155 F. 828; Kauffman v. Garner (C.C.) 173 F. 550; Roschynialski v. Hale (D.C.) 201 F. 1017; Stratton v. Hughes (D.C.) 211 F. 557. To these may be added the citation of Feister v. Hulick (D.C.) 228 F. 821, in this jurisdiction.

From these it may be gathered that witnesses in criminal cases will be given the benefit of the rule, and that the federal courts (contrary to the policy of some of the state courts) extend protection to defendants under arrest in criminal cases. Protection is extended also to nonresident plaintiffs attending the trial of their cases, although the courts of the state in which the service was had would uphold it. A nonresident witness or party defendant, who is in the jurisdiction when served, for the purpose of attending the trial of his case, is immune from the service of process also a nonresident witness, although he did not in fact testify; also those attending the taking of depositions before a notary public; also those attending before a road commissioner. Service may, however, be made in a state through which the party served is traveling, although going to attend a trial. Service may be had for a cause of action arising out of the act of...