Doyle-Kidd Dry Goods Company v. Munn

• Decision Date: 13 February 1922
• Docket Number: 142
• Parties: DOYLE-KIDD DRY GOODS COMPANY v. MUNN
• Court: Arkansas Supreme Court

238 S.W. 40

151 Ark. 629

DOYLE-KIDD DRY GOODS COMPANY v. MUNN

No. 142

Supreme Court of Arkansas

February 13, 1922

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

Rogers Barber & Henry, for appellant.

Sec 436, C. & M. Digest, provides for service of summons at any time or place, and there is no exception in favor of members of the Legislature. Such service does not violate any rule of public policy, as sec. 430, C. & M. Digest, provides for the continuance of such civil suit until 15 days after the adjournment of the Legislature. To exempt legislators from service of summons during session of Legislature would be to grant special privileges and immunities to a class or individuals. 21 R. C. L. sec. 47.

No brief for appellee.

WOOD J. MCCULLOCH, C. J., dissenting.

OPINION

WOOD, J.

The appellant instituted this action against the appellee in the Pulaski Circuit Court. In his complaint the appellant asked for judgment in the sum of $ 2,558.04 on account for merchandise alleged to have been sold and delivered to the appellee. Summons was issued, and the return of the sheriff thereon shows service on the 10th of March, 1921. The appellee entered an appearance only for the purpose of moving to quash the service. In his motion he alleged that he was a resident and citizen of Nevada County; that at the time the summons was served on him he was attending a session of the Legislature; that he was in the discharge of his duties as such member of the Legislature at the time, and was therefore privileged from the service of such process. The court heard the motion as on demurrer thereto and sustained the same. Judgment was entered quashing this service, from which is this appeal.

The question on this appeal is whether or not a member of the Legislature, while in attendance and in the discharge of his duties at a session of the General Assembly, can be served with summons in a civil action to appear after the adjournment of the Legislature at a future date in a court of competent jurisdiction, to defend such action in such court. Our statute (sec. 429, C. & M. Digest) exempts members of the Senate and House of Representatives from arrest for fifteen days before the commencement and after the termination of the session of the Legislature. But the statute provides that "nothing contained in the provisions of this act shall be so construed as to extend to cases of treason, felony, or breach of the peace, or to privilege any person named from being served at any time or place herein specified with a summons or notice to appear." (Sec. 436, C. & M. Digest.) The statute also provides: "All proceedings in suits pending in any of the courts of this State in which any of the persons named in the preceding section are parties, should be stayed during the time aforesaid." Among the persons named in the preceding section are members of the House of Representatives.

The action against the appellee is of that class that may be brought in any county in which the defendant or one of several defendants resides or is summoned. (Sec. 1176, C. & M. Digest). Under the express provision of § 436, supra, the appellee was not exempt from the service of summons. That privilege was not extended to him as in cases of arrest. We have a statute exempting witnesses from suits in counties where they do not reside while going, returning, or attending in obedience to a subpoena (§ 4171, C. & M. Dig.) and on the ground of public policy this court extended the rule to include litigants while in attendance upon judicial proceedings in courts other than those of their residence. See Powers v. Arkadelphia Lumber Co., 61 Ark. 504, 33 S.W. 842; Martin v. Bacon, 76 Ark. 158, 88 S.W. 863.

In Paul v. Stuckey, 126 Ark. 389, 189 S.W. 676, we held that the rule of public policy which would exempt litigants from being sued in counties other than their residence while attending court in those counties, did not extend such exemption or privilege to attorneys while in attendance upon courts in the professional capacity as attorney and officer of the court. The reason for this is that such service of summons would not interfere with the orderly administration of justice. In that case we held that the reason upon which the rule is founded is that "it is to the public interest and for the public good that courts be untrammeled in their efforts to administer justice between parties to causes pending before them." But no such rule of public policy, of course, could apply in the case of members of the General Assembly. For under the statute above quoted (§ 430, C. & M. Digest) an action in which a legislator may be a party is stayed. In other words, a civil action in which the legislator is a party is stayed by virtue of the statute during the session of the Legislature and for fifteen days prior, and also fifteen days subsequent thereto. Therefore, any supposed grounds of public policy because of interference with the making of laws in the public interest are eliminated by the express provision of the statute which holds in abeyance any proceedings instituted against a member of the Legislature during the time required for the performance of his duties as a lawmaker.

Since, under the statute, there can be no interference with the interest of the public in serving summons upon a legislator during the sessions of the General Assembly, we are not called upon to determine whether any public policy would be infringed in the absence of the statute. There is no necessity for our entering upon that interesting field of discussion in which there appears to be a contrariety of views in the adjudicated cases. See 21 R. C. L. 1303, § 47.

The trial court therefore erred in quashing the service, and its judgment is reversed, and the cause remanded, with directions to overrule the appellee's motion...