Christian v. Williams

Decision Date02 July 1892
Citation20 S.W. 96,111 Mo. 429
PartiesCHRISTIAN v. WILLIAMS et al.
CourtMissouri Supreme Court

5. A service of civil process obtained on a person by abuse of criminal process, which took him away from the county of his residence to a distant county for that purpose, is worthless, and no jurisdiction is thereby acquired. Byler v. Jones, 22 Mo. App. 623, overruled.

Appeal from St. Louis circuit court; LEROY B. VALLIANT, Judge.

Action by John R. Christian against James M. Williams and Davis to recover the sum of $500 for professional services rendered as attorney at law. Judgment for defendants. Plaintiff appeals. Affirmed in part, and reversed in part.

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

Action by plaintiff to recover of the defendants the sum of $500, alleged to be due him for legal services as an attorney at law. Plaintiff is a resident of the city of St. Louis, and the defendants are resident in Randolph county. Williams had been served with process in the city of St. Louis at the suit of Cummisky & Samuels, who are merchants in that city. Williams was in attendance on the trial of said cause, both in the capacity of party and witness, and was served with summons in the present action while he was thus in attendance in court room No. 3, and during the trial of said cause. Another writ was issued to defendant Davis, and served upon him in Randolph county. The defendants pleaded to the jurisdiction of the court, to the effect that in the circumstances stated that court had no jurisdiction over them. They also pleaded in general denial of the allegations of the petition. Plaintiff replied. The parties went to trial, and full proof was made by the defendants of the facts aforesaid, and there was no countervailing evidence offered. 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, having thus declared the law, the court gave judgment for the defendants.

Christian & Wind, for appellant. Jas. Carr and Ben T. Hardin, for respondent.

SHERWOOD, C. J., (after stating the facts.)

Two questions are presented by the record: First, whether the circuit court acquired jurisdiction by reason of the service on either of the defendants; second, whether any waiver occurred on the part of either of the defendants to object to the jurisdiction of the circuit court.

1. Section 2009, Rev. St. 1889, so far as necessary to quote it, declares that "suits instituted by summons shall, except as otherwise provided by law, be brought — First, when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county." Section 2021 of the statute provides: "When there are several defendants residing in different counties, the plaintiff may, at his option, have a summons directed to `any sheriff in the state of Missouri,' or have a separate summons directed to the sheriff of any county in which one or more defendants may be found." It will readily be seen from these provisions that where a defendant is "found" in a county where a plaintiff resides, and is thereupon served with process, there exists no statutory authority for the issuance of another writ to the county of the defendant's residence for service upon another defendant in the same action. It results from this absence of statutory authority that the service of process on Davis conferred no jurisdiction on the circuit court of the city of St. Louis over the person of that defendant, and that court acquired none over him, except upon the ground of waiver, — a point to be hereafter noticed.

2. Witnesses as well as parties are protected from arrest while going to the place of trial, while attending there for the purpose of testifying in the cause, and while returning home. 1 Greenl. Ev. (14th Ed.) § 316. This privilege extends to all who have any relation to a cause, as parties, attorneys, bail, etc. 1 Tidd, Pr. Amer. Notes, 195, 196. But this privilege at common law extended only so far as to discharge from arrest, when arrested on civil process, and did not abate the suit. That still went on, and the party arrested was held upon common bail; that is, he entered his appearance in the action. Black, Law Dict. tit. "Bail — Common;" Long's Case, 2 Mod. 181; Cameron v. Lightfoot, 2 W. Bl. 1192; King v. Coit, 4 Day, loc. cit. 132-137; Bishop v. Vose, 27 Conn. loc. cit. 11, 12; Sadler v. Ray, 5 Rich. 523, and cases cited; Blight v. Fisher, 1 Pet. C. C. 41, and cases cited; Legrand v. Bedinger, 4 T. B. Mon. 539; Catlett v. Morton, 4 Litt. 122; Hunter v. Cleveland, 1 Brev.(S. C.) 167; Hopkins v. Coburn, 1 Wend. 292; Bours v. Tuckerman, 7 Johns. 538; Pollard v. Railroad Co., 7 Abb. Pr. (N. S.) 70, and cases cited; Booraem v. Wheeler, 12 Vt. 311; Page v. Randall, 6 Cal. 32. The case of Blight v. Fisher, supra, is said to have been overruled by the subsequent case of Parker v. Hotchkiss, 1 Wall. Jr. 269; but the facts in the two cases were essentially different. In the former case the party who was summoned was attending court, and was a resident of New Jersey, where the court was held; while in the latter the suitor in the United States circuit court was resident outside of the circuit, and was arrested, and it was then held that he was entitled to be discharged, not only from the arrest, but absolutely, even from the service of process; and this, as shown by the authorities, was the rule at common law as to a citizen of a foreign state, whether party or witness. This was the course pursued in New York as to a nonresident witness. Sandford v. Chase, 3 Cow. 381; Norris v. Beach, 2 Johns. 294. But in Hopkins v. Coburn, 1 Wend. 292, a resident party and suitor in a cause against whom a capias was issued in another cause, and from whom bail was not demanded, was required to indorse his appearance or be committed, and, having done so, he afterwards moved to vacate his appearance thus entered but this was denied, on the ground that he had only done what the court would have required of him had he been actually arrested and compelled to give bail. That case virtually overrules the dictum in Sandford v. Chase, supra, respecting the arrest and absolute discharge of a resident witness. In Bours v. Tuckerman, supra, a resident party was under recognizance to attend court, and while so attending was arrested on a capias in a civil action, and admitted to bail; and, upon his moving for his discharge, it was ruled that he should be discharged from arrest on filing common bail. In the more recent case of Pollard v. Railroad Co., (decided in 1869,) supra, it was ruled that a nonresident party attending as a party and witness from another state, and who, while so attending, was served with a summons in another action, was not entitled to be discharged from such service, or to have the same set aside for irregularity; and the same reasons are given, and some of the same authorities cited, where the service was initiated by an arrest. More recently it has been held in the same state, in Person v. Grier, 66 N. Y. 124, that a nonresident party attending as a witness could not be legally served with ordinary civil process; and that such service should be vacated. To the same effect is Matthews v. Tufts, 87 N. Y. 568, where a nonresident was in attendance as a party. It has been ruled in Vermont that the arrest of a resident party attending court as a witness is no cause for abating the writ, but that application could be made to release the person from arrest. Booraem v. Wheeler, 12 Vt. 311. In a subsequent case in that state, a nonresident suitor and witness, while in attendance at court, was held not amenable to the service of ordinary process in another action brought in that state. In re Healey, 53 Vt. 694. In Kentucky it has been held that a witness resident in one county was not exempt in another county, when attending court,...

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