Ewing v. Elliott

• Decision Date: 14 June 1935
• Docket Number: 24713.
• Citation: 181 S.E. 123,51 Ga.App. 565
• Parties: EWING v. ELLIOTT.
• Court: Georgia Court of Appeals

181 S.E. 123

51 Ga.App. 565

EWING v. ELLIOTT.

No. 24713.

Court of Appeals of Georgia, First Division

June 14, 1935

Rehearing Denied July 26, 1935.

Syllabus by the Court.

Where there is pending in the state of Florida a suit of A against B, and by stipulation of counsel for both parties B comes into this state solely for the purpose of taking depositions B is exempt from service of civil process while taking such depositions and during a reasonable time going and coming. This is true although the attorney for B testified that the purpose of taking the depositions was to make opposing counsel believe that B would not be present at the trial of the suit in Florida and there was no intention to use the depositions.

Error from Superior Court, Glynn County; J. H. Thomas, Judge.

Suit by G. B. Ewing against Robert W. Elliott. To review the judgment, plaintiff brings error.

Affirmed.

Conyers & Gowen, of Brunswick, and B. M. Skelton, of St. Petersburg Fla., for plaintiff in error.

Reese Scarlett, Bennet & Highsmith, of Brunswick, and Blanchard & Hoffman, of St. Petersburg, Fla., for defendant in error.

GUERRY Judge.

G. B Ewing, a resident of Montreal, Canada, filed suit in Glynn superior court against Robert W. Elliott, his father-in-law, also a resident of Montreal, Canada, in the sum of $50,000, for an alleged assault and battery committed upon him on the 30th day of December, 1932, in St. Petersburg, Pinellas county, Fla. Elliott filed a plea in abatement to the suit, challenging the jurisdiction of the court over his person; objecting to the process and the manner of its attempted service upon him. The plea alleged substantially as follows: "Defendant is not a citizen or resident of the state of Georgia, but is a citizen of the Dominion of Canada, residing at Montreal, Quebec. Defendant came within the boundaries of said state of Georgia, and within the boundaries of Glynn county therein, and within the territorial jurisdiction of this court, and within the reach of its officers, solely and only for the purpose of complying with a stipulation entered into between this defendant's attorney and attorneys representing Robert P. Kruse and Daisy Kruse, * * * in a suit then pending in the circuit court of the sixth judicial circuit of the state of Florida in and for Pinellas county, * * * and entitled Robert P. Kruse and Daisy Kruse, * * * plaintiff, versus R. W. Elliott, defendant, for the purpose of taking this defendant's testimony in said cause. * * * This stipulation provided for the taking of this defendant's testimony at ten o'clock on the morning of February 23, 1934, at the office of Conyers & Gowen, a firm composed of C. B. Conyers and Charles L. Gowen, attorneys at law of Brunswick, Georgia. * * * In order to comply with the said stipulation, this defendant arrived in the City of Brunswick about ten o'clock p. m. February 22, 1934, and registered at the Hotel Oglethorpe in said city. At about ten o'clock on the following morning this defendant reported at the law offices of said firm of Conyers and Gowen for the purpose of giving his testimony in compliance with the aforesaid stipulation. While so engaged in giving his testimony in the offices of said attorneys this defendant was served by R. S. Pyles, sheriff of Glynn county, Georgia, with a copy of plaintiff's petition and process in the above-captioned case, and has not been otherwise served. This defendant avers that during his attendance upon the taking of the testimony in the cause of Robert P. Kruse and Daisy Kruse, joined by her husband, Robert P. Kruse, plaintiff, v. R. W. Elliott, defendant, under the stipulation, * * * he was by law exempt from the service of civil process, and that any attempted service of such process upon him while there in his attendance upon the giving testimony under the aforesaid stipulation was null and void." Issue was joined on the plea in abatement and evidence introduced. At the conclusion of the evidence the trial judge directed a verdict in favor of the plea, and to this ruling the plaintiff excepted.

It appears that the defendant has employed the proper means at the proper time for testing the validity of the service over his person. Thornton v. American Writing-Machine Co., 83 Ga. 288, 9 S.E. 679, 20 Am.St.Rep. 320. The question is: Did the court err in directing a verdict in favor of the plea, under the evidence submitted. The Civil Code (1910) §§ 22, 2172, provided: "The jurisdiction of this State and its laws extend to all persons while within its limits, whether as citizens, denizens, or temporary sojourners." And section 5531 provides: "A citizen of another state, passing through this State, may be sued in any county thereof in which he may happen to be at the time when served." Section 5854, provides: "Witnesses are protected from arrest on any civil process while going to or returning from and attending on any court, and the officer who shall hold him imprisoned after seeing his subpoena, or being satisfied of the fact, shall be liable for a false imprisonment." While this is the only exception to sections 22, 2172, and 5531, stated in our Code, it has been recognized that this section is not exhaustive, and the common-law rule, which constitutes the great weight of authority in this country, that a nonresident witness or suitor in attendance upon the trial of any case in court is exempt from service of any writ or summons while so attending, and in going to or returning from the court, is of force in this state. See Thornton v. American Writing-Machine Co., 83 Ga. 288, 9 S.E. 679, 20 Am.St.Rep. 320; Fidelity & Casualty Co. v. Everett, 97 Ga. 787, 788, 25 S.E. 734; Vaughn v. Boyd, 142 Ga. 230, 82 S.E. 576, L.R.A. 1915A, 694, where a full discussion of this principle is given and all authorities then decided are cited and discussed; Watson v Kvaternik, 33 Ga.App. 415, 126 S.E. 552; Lomax v. Lomax, 176 Ga. 605, 608, 168 S.E. 863. There has been no ruling in our courts on the question here presented, of whether a nonresident, who has a cause pending in another state, who comes into this state by stipulation and agreement of his counsel and counsel representing the opposing party to the suit, for the purpose of giving testimony in the form of depositions, is exempt from service of civil process while fulfilling this purpose. However, from the great weight of authority, the privilege of exemption is not only assured while one is attending upon strictly judicial proceedings, but upon any tribunal whose business...