Christian v. Williams
| Decision Date | 02 July 1892 |
| Parties | Christian v. Williams et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Action by plaintiff to recover of the defendant 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 and 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 courtroom number 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 circumstance 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.
Reversed and remanded.
Christian & Wind for appellant.
(1) The court erred in holding it had no jurisdiction. The service of the writ, so far as it was a summons to the party or witness to appear and answer, and gave jurisdiction over the person of the defendant, was invariably held good and valid by the English court, and even by the house of lords, and not a dictum can be found to the contrary, -- the privilege being at common law, only from the detention by arrest, on the ground that the courts were entitled to the presence in court of its suitors and witnesses for the due administration of justice. Greenleaf on Evidence, sec. 316; Walpole v. Alexander, 3 Doug. 46; Meeking v. Smith, 1 H. Bl. 636; Arding v. Flower, 8 Term. (D. & E.) 534; Spence v. Stewart, 3 East, 89 (Ellenbrough, L. C.); Ex parte Byrne, 1 Ves. & Beame, marg. p. 316 (Eldon, L. C.); Passee v. Passee, 5 H. of L. Cases, 671; Selby v. Hills, 8 Brig. 166; Long case, 2 Mod. 181; Cameron v. Lightfoot, 2 W. Bl. 1192, et seq. (2) A division of the authorities in regard to the privilege of suitors and witnesses from service of process in this country, according to the different views expressed by the courts, show: First. That the privilege has been allowed to suitors and witnesses served while attending court, or to their case in a state other than that of their residence, that is, to parties and witnesses non-resident of the state where served. Wood v. Neale, 5 Gray, 538; Norris v. Beach, 2 Johns. 294; May v. Shumway, 16 Gray, 86; Taft v. Hopkins, Anthon (N. Y.) 255; Person v. Grier, 66 N.Y. 124; Matthews v. Taft, 86 N.Y. 570; In re Healey, 53 Vt. 695; Halsey v. Stewart, 4 N. J. L. (1 South.) 366; Dungan v. Miller, 8 Vroom (37 N. J. L.) 182. Second. In Pennsylvania, and in two United States circuit courts, and in three recent cases the privilege has been allowed to suitors and witnesses served while attending court in the state of their residence. Boulton v. Morton, Dall. 296; Hayes v. Shields, 2 Yeates, 222; Parker v. Hotchkiss, 2 Wall, 272; Gyer v. Irwin, 4 Dall. 106; Lyell v. Goodwin, 4 McLean, 29; Wetherell v. Sutzinger, 1 Miles, 240; Mitchell v. Huron, 53 Mich., sub nomen Mitchell v. Nixon, 19 N.W. 776; Palmer v. Rowan, 32 N.W. 210; Andrews v. Lembeck, 18 N.E. 484. Third. That the privilege has been almost unanimously denied to suitors and witnesses served while attending court in their own state, whether in or out of their county, except in Pennsylvania, as appears from head second above. McNeil case, 6 Mass. 255; Bours v. Tuckerman, 7 Johns. 538; Grover v. Green, 1 Caines (N. Y.) 115; Hunter v. Cleveland, 1 Brevard (S. C.) 167; Blight v. Fisher, Peters' C. C. 41; Booraem v. Wheeler, 12 Vt. 311; Hopkins v. Coburn, 1 Wend. 292; Duringer v. Moschino, 93 Ind. 495; Legrand v. Bedinger, 4 T. B. Mon. (Ky.) 539; Massey v. Colville, 45 N. J. L. 119; Sadler v. Ray, 5 Rich. (S. C.) 523; Page v. Randall, 6 Cal. 32; Bishop v. Vose, 27 Conn. 7; Pollard v. Railroad, 7 Abb. Pr. (N. S.) 70; Bridges v. Sheldon, 7 F. 19; Hinegar v. Spangler, 29 Ga. 218; Richards v. Goodman, 2 Va. Cases, 381. Fourth. The legislature of this state from earliest time has considered this subject, and fixed what it deemed the proper limits of the privilege, in the absence of fraud, from time to time up to the present, and while this does not bind the court yet the court will follow it as an expression of the will of the people, unless an actual interference with the administration of justice can be shown to result. Geyer's Digest, 247, 248, sec. 16; p. 33, 281; Revised Statutes, 1825, sec. 1, p. 622; Revised Statutes, 1835, secs. 8, 9, 10, 11, 13, p. 348; Revised Statutes, 1845, secs. 1, 5, pp. 804-5; Revised Statutes, 1855, sec. 20, p. 1581; Revised Statutes, 1879, sec. 3481. (3) Under our law, the plaintiff having a right to bring his action in the city of St. Louis, and to serve the defendants if found there, the objection of privilege goes only to the service as ill-timed, and not to the summons itself, and, consequently, is not such a defense as the statute in respect to what may be included in an answer contemplates. It is no cause, if it exists, for abating the suit, but only for abating the service for irregularity. The process itself was good, and should not abate, and only the service was irregular, being ill-timed. Delinger's Adm'r v. Higgins, 26 Mo. 182-3; Cameron v. Lightfoot, 2 W. Bl. 1192, et seq.; Booraem v. Wheeler, 12 Vt. 311; Bishop v. Vose, 27 Conn. 7; Bank v. McSpedan, 5 Biss. 64; Duringer v. Moschino, 93 Ind. 495; Spence v. Stewart, 3 East, 89; Hunter v. Cleveland, 1 Brev. 167, and all the English cases; Phillibert v. Evans, 25 Mo. 323. (4) The defendants could not at the same time, by way of answer or otherwise, insist the court had no jurisdiction over them, and at the same time come in with defenses recognizing that jurisdiction. They must elect in which position they will stand before the court. Their position cannot be ambiguous or conditional, and if they desired to insist on the objection they should have stood by this objection, and there should have been no other or further appearance. Kronski v. Railroad, 77 Mo. 368; Boulware v. Railroad, 79 Mo. 496; Smiley v. Cockrill, 92 Mo. 112; Tower v. Moore, 52 Mo. 120; Swift v. Troes, 55 How. Pr. 256; Smith, Adm'r, v. Rollins, 25 Mo. 410; Jordan v. Railroad, 61 Mo. 54; Platt v. Canfield, 67 Mo. 48. (5) The defendant waived the objection to the service, and any want of jurisdiction. First. As the plea to the jurisdiction was precisely the same verbatim as that held bad on demurrer, the answer was not amended so far as that plea was concerned, and plaintiff had a right to treat it as a nullity or move to strike it out. Doughty v. Devlin, 1 E. D. Smith, 625; Howard v. Railroad, 5 How. Pr. 5, a somewhat similar case in principle. Second. Defendants failed to except, took leave to answer over, while the decision of the court on the demurrer adverse to the plea remained unreversed, and thus waived their right to the objection to the jurisdiction. Kronski v. Railroad, 77 Mo. 368; Delinger's Adm'r v. Higgins, 26 Mo. 183; Wright v. Miller, 3 Alb. L. J. 253.
James A. Carr for respondent.
(1) A literal construction of a statute will be rejected when it leads to an absurd conclusion or to one that would produce palpable injustice. Proctor v. Railroad, 64 Mo. 112; Bent v. St. Vrain, 30 Mo. 268; Osgood v Breed, 12 Mass. 528; Reed v. Davis, 8 Pick. 513; Jackson v. Collins, 3 Cow. 89; Byler v. Jones, 79 Mo. 261; Little v. Harrington, 71 Mo. 390. (2) The circuit court never acquired jurisdiction over respondents by the service of summons. First. Service of process in the courtroom, while the circuit court was in session there, was void. 3 Inst. Tit. 140; 3 Blacktone's Commentaries, 289; 1 Camp. 475; 10 East, 578. Second. Where a capias was the proper process for bringing a defendant into court, the privilege from arrest was an absolute immunity from the service of process, and a discharge from arrest was equivalent to setting aside the service of process. Pitt's case, 2 Stra. 986; Walpole v. Alexander, 3 Doug. 45; Mills v. McClellan, 1 Binney, 77; Hayes v. Shields, 2 Yeates, 222; Halsey v. Stewart, 1 South. (4 N. J. L.) 366; Huddeson v. Prizer, 9 Phil. 65; Gilbert v. Vanderpool, 15 John. 242; Van Alstyne v. Dearborn, 2 Wend. 586; Tatlow v. Bateman, Vent. 135 (1671). Third. Where a summons is the proper process for bringing a witness into court, the service of summons on a defendant attending court as a suitor or witness will be set aside, and the court acquires no jurisdiction by reason of such service. Shaver v. Letherby, 41 N.W. 677; Mitchell v. Judge, 53 Mich. 541; Andrews v. Lembeck, 46 Ohio St. 38; Palmer v. Rowan, 32 N.W. 210; Brooks v. Farwell, 2 McCrary, 567; Parker v. Hotchkiss, 1 Wall. 269; Bridges v. Shelton, 7 F. 19, 42; Bank v. McSpedan, 5 Biss. 64; United States v. Anonymous, 21 F. 771. (3) The filing of an answer on the merits does not waive a plea to the jurisdiction. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Cohn v. Lehman, 93 Mo. 574; Hereford v. Ins. Co. 42 Mo. 148; Stanley v. Railroad, 62 Mo. 508; Larned v. Griffin, 12 F. 585; Fisher v. Fraprie, 125 Mass. 474; O'Loughlin...
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