Church v. Church

• Decision Date: 03 January 1921
• Docket Number: 3401.
• Citation: 270 F. 361
• Parties: CHURCH v. CHURCH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

270 F. 361

CHURCH v. CHURCH.

No. 3401.

United States Court of Appeals, District of Columbia.

January 3, 1921

Submitted December 8, 1920.

Appeal from the Supreme Court of the District of Columbia.

Alfred D. Smith, of Washington, D.C., for appellant.

W. P Plumley, of Washington, D.C., for appellee.

SMYTH Chief Justice.

The appellant, Church, was indicted by a grand jury of this District for nonsupport of his infant child. He, a resident of Virginia, through an arrangement with the district attorney, came to Washington from his place of employment in North Carolina, entered a plea to the indictment, and was tried. As he was leaving the courthouse for the purpose of returning to the state of his employment, he was served with process in this case, which is an action at law by his wife to recover from him allowances made by a Maryland court for her support, and which, according to the allegations of the declaration, have not been paid. Appearing specially, he moved to quash the service, on the assumption that he was immune from the service of process during such time as was reasonably requisite for him to leave the District by the usual routes of travel, but the motion was overruled. From the order overruling it he appeals.

The order is interlocutory merely, from which no appeal lies as a matter of right. Dieterich v. Dieterich, 48 App.D.C 356. Considering the character of the action, however, we will treat the appeal as a special one under the Code (section 226), and dispose of it on the merits. This however, must not be taken as a precedent.

We think that the great weight of decision, both state and federal, on the subject, indicates that the court erred.

'Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them. The citizen, in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach them, not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. He should also be enabled to procure, without difficulty the attendance of all such persons as are necessary to manifest his rights. Now, this great object in the administration of justice would in a variety of ways be obstructed, if parties and witnesses were liable to be served with process, while actually attending the court. ' Halsey v. Stewart, 4 N.J.Law, 420.

The Supreme Court of the United States quotes with approval the following language:

'The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. ' Stewart v. Ramsay, 242 U.S. 130, 37 Sup.Ct. 46, 61 L.Ed. 192.

Appellee argues that the appellant came into the jurisdiction voluntarily and therefore is not entitled to immunity from service. Assuming that his appearance here was voluntary, we think the circumstance is immaterial. The rule, as we find it, is the same, whether he came of his own volition or was coerced.

'As to nonresidents charged with crime, or brought within the jurisdiction of the court by compulsory process, the general rule seems to be that they are exempt from the service of civil process while coming into the jurisdiction, while necessarily in attendance on the court, and while returning to their place of residence, provided no unnecessary delay occurs in returning.' 21 R.C.L. 1313.

Judge Cooley, in People ex rel. Watson v. Judge of Superior Court, 40 Mich. 729, said, in answer to the contention 'that, as the relator must be considered as going...