Central Trust Co. v. Milwaukee St. Ry. Co.

• Court: U.S. District Court — Eastern District of Wisconsin
• Citation: Central Trust Co. v. Milwaukee St. Ry. Co., 74 F. 442 (E.D. Wis. 1896)
• Decision Date: 18 May 1896
• Parties: CENTRAL TRUST CO. OF NEW YORK et al. v. MILWAUKEE ST. RY. CO.

74 F. 442

CENTRAL TRUST CO. OF NEW YORK et al. v. MILWAUKEE ST. RY. CO.

United States Circuit Court, E.D. Wisconsin.

May 18, 1896

B. K Miller, Jr., for petitioner.

P. J Somers and A. W. Bell, for respondent.

SEAMAN District Judge.

The facts stated by the petition, and conceded upon the hearing are substantially as follows: The petitioner is an attorney at law residing in New York City, and has been engaged as counsel in the recent Northern Pacific litigation, throughout its pendency in this and other courts. He is also president of the defendant corporation in the above-entitled action. On April 28, 1896, he was in attendance before this court on application for certain important decrees respecting the Northern Pacific Railroad Company, having come from New York expressly for that purpose. Immediately after the hearing while he was engaged in such matters, and in the office of the clerk of this court, the petitioner was served with a subpoena requiring his attendance as a witness before a commissioner of this court on May 1, 1896, in an examination pending in the above-entitled action, on behalf of an intervener therein,--being a matter entirely outside of said engagement. His duty as counsel in the Northern Pacific proceedings required his departure the same evening for St. Paul, and thence to various distant points, to obtain entry of ancillary decrees carrying out the purposes of the decrees entered here. Upon these facts, is a case presented which calls for intervention by the court to save the petitioner from compulsory attendance herein as a witness on behalf of adverse parties, taking into consideration the fact that he is the president of the defendant, a Wisconsin corporation, and a nonresident of the state? The answer to this inquiry is clearly deducible from the authorities.

The ancient rule in England extended to practicing attorneys generally the privilege from arrest by the ordinary process of court, on the theory that they were 'always supposed to be there attending,' and that the 'business of the court or their client's causes would suffer by their being drawn into any other than that in which their personal attendance is required.' 3 Bl.Comm. 289; Bac. Abr. tit 'Privilege.' This doctrine obtained no acceptance, as an entirety, in the jurisprudence of this country; and a privilege of such nature and extent could not well exist, in the light of American institutions, nor under the conditions of the present day. But, out of the common-law rule, it has become firmly established in the courts of the Union that 'all persons who have any relation to a cause which calls for their attendance in court, and who attend in the course of that cause, though not compelled by process, are, for the sake of public justice, protected from arrest in coming to, attending upon, and returning from the court. Tidd, Prac. 196; 1 Greenl.Ev. Secs. 316-318, and cases cited. ' In re Healey, 53 Vt. 694, 38 Am.Rep. 713, and notes, page 717. Necessarily, if not primarily, the immunity extends to the attorney representing the cause of his client before the court. In that view, it is stated in Brooks v. Patterson, 2 Johns.Cas. 102, 'The object is that attorneys may not be drawn into other courts, or to other business, to the injury of the suitors,' but that 'the privilege is that of the court, for the sake of public justice, and is not intended as an accommodation to the individual. ' And in the leading case of Parker v. Hotchkiss, 1 Wall.Jr. 269, Fed. Cas. No. 10,739, it is said, in the opinion by Judge Kane, in which Chief Justice Taney and Mr. Justice Grier concurred, that the privilege is that of the court, and the immunity of the parties is incidental; that it arises 'in the necessities of the judicial administration, which could be often embarrassed, and sometimes interrupted,'...