Cooper v. Wyman

• Decision Date: 11 May 1898
• Parties: COOPER . v. WYMAN.
• Court: North Carolina Supreme Court

29 S.E. 947

122 N.C. 784

COOPER .

v.WYMAN.

Supreme Court of North Carolina.

May 11, 1898.

PltOCESS — SE kv1ce — PKIv1leg e — dismissal—appealable Okdeks—Statutes—Implied Repeal

1. A nonresident who comes into the state for the sole purpose of attending a litigation either as suitor or as witness is exempt from service of civil process during his coming, his stay, and a reasonable time for returning.

2. Code, §§ 1367, 1735. prohibiting arrest in civil actions of parties attending court as witnesses or as jurors, does not by implication repeal the common-law exemption of nonresidents from service of process while in the state in attendance in court either as witnesses or as suitors.

3. Service of process on a nonresident who is exempt from service by reason of being in the state for the purpose of attending a litigation is not void, but voidable, and his remedy is by special appearance and motion to set aside the return of service, and not by motion to dismiss the action.

4. An order denying a motion to dismiss an action is not appealable.

Appeal from superior court, Cherokee county; Norwood, Judge.

Action by J. W. Cooper against H. P. Wy-man. From an order denying a motion to dismiss the action, defendant appeals. Appeal dismissed.

Davidson & Jones and F. A. Sondley, for appellant.

CLARK, J. The defendant Is a nonresident of this state, and was served with a summons

in this action while attending Swain superior court to prosecute an action, in which he was sued, as a witness In his own behalf, and the affidavit (which was taken as true, not being controverted) states that he was not in this state for any other purpose whatever. The motion to dismiss the action was properly refused, but the point relied on, which should regularly have been raised by a motion to strike out the return of service, is that a summons or other civil process cannot be served upon a nonresident who comes into this state for the sole purpose of attending a litigation in our courts as suitor or witness. This is the well-established rule of law, and the very numerous cases to that effect are collected In some 18 pages of small type In the notes to Mullen v. Sanborn (Md.) 25 L. R. A. 721 (s. c. 29 Atl. 522). They represent so universal and so uniform a holding upon the point that it is unnecessary to do more than refer to them. The rule is thus stated in Ror. Int. St. Law, 26: "It is the policy of the law to protect [nonresident] suitors and witnesses from service of process in civil actions, whether the process be such as require their arrest or be merely in the nature of a summons. Service in such cases will be set aside as well upon general principles as upon positive law, if there is such." As stated in many of the cases, this settled rule is based upon" high considerations of public policy, not upon statutory law, since it Is the public interest that suitors and witnesses from other states, who cannot be compelled to attend our courts, may not be deterred from voluntarily appearing by fear of being served with process in other actions; their presence, if obtainable, being calculated to enable the courts to more thoroughly educe the truth of the matters in litigation. Baldwin v. Emerson, 16 R. I. 304, 15 Atl. 83. In some few of the earlier cases, it was questioned whether the privilege was not restricted to witnesses, but all the later and better considered cases embrace parties as well as witnesses, more especially since the change which enables parties to be examined as witnesses. Matthews v. Tufts, 87 N. Y. 568; Bank v. McSpedan, 5 Biss. 64, Fed. Cas. No. 7, 582. No one is hurt by this exemption, since, if it did not exist, the nonresidents would not come here, and service of summons on them could not be made any way. Sherman v. Gundlach, 37 Minn. 118, 33 N. W. 549; Ballinger v. Elliott, 72 N. C. 596. The exemption covers the time of their coming, stay, and reasonable time for returning, enndo, morando et redeurido; but the exemption Is strictly restricted to those instances in which the...