Feuster v. Redshaw

• Decision Date: 04 April 1929
• Docket Number: 67.
• Citation: 145 A. 560,157 Md. 302
• Parties: FEUSTER v. REDSHAW ET AL.
• Court: Maryland Court of Appeals

145 A. 560

157 Md. 302

FEUSTER v. REDSHAW ET AL.

No. 67.

Court of Appeals of Maryland

April 4, 1929

Appeal from Court of Common Pleas of Baltimore City; Duke Bond Judge.

Action by Frank Feuster, an infant, by Frank M. Feuster, his father and next friend, against Joseph H. Redshaw and another. From a judgment quashing summons for the named defendant and striking out sheriff's return, plaintiff appeals, and by agreement decision is to apply to actions by Frank M. Feuster and William G. Scherbel against the same defendants. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, and PARKE, JJ.

Joseph Fax, of Baltimore, for appellant.

James U. Dennis, of Baltimore, for appellees.

PARKE J.

On September 6, 1928, three actions at law for damages growing out of alleged negligence in the operation of two automobiles were begun in the court of common pleas of Baltimore city against Joseph H. Redshaw and Joseph Whiteley, the automobile owners. The first suit was by the infant, Frank Feuster, for personal injuries sustained; the second was by the father of the infant for expenses and loss of services growing out of the injuries suffered by the son; and the third was by William G Scherbel for damages because of injuries sustained by himself and to his automobile. In every one of these three cases the nisi prius court quashed the summons issued for Redshaw, and struck out the return of the sheriff that Redshaw had been summoned. An appeal was taken in every case. As the point involved is the same in every action, and was decided on the same relevant facts, the parties commendably agreed upon what should go in the record, and that the decision of this court shall apply to all the cases.

It appears from the record that on July 31, 1928, Joseph H Redshaw, a resident of the state of Pennsylvania, was driving his automobile in Baltimore city, in this state, when his automobile collided with one driven by Joseph Whiteley; and, as a result of this accident, an infant, Frank Feuster, and William G. Scherbel were injured, and an automobile owned by the latter was damaged. Redshaw was arrested on the same day on a charge of having violated a provision of the motor vehicle laws of the state of Maryland, and was forthwith taken by a police officer before a magistrate of the traffic court of Baltimore city, who required him to post collateral for his appearance in that court at the time of the trial of the case of the state of Maryland against him for the criminal charge of which he was accused. The police officer then immediately took him before a police magistrate at a police station in Baltimore city, where he was charged with the crime of assault and battery upon the body of the injured child; and, thereafter, was released to appear before said police magistrate for the trial of the crime of which he was accused in the case of the state of Maryland against him on the magistrate's criminal docket. Redshaw went to his home in Pennsylvania, and there remained. The criminal case against him in the traffic court was set for trial at 9 o'clock in the morning of September 6th, and the other criminal charge was fixed for trial at the police station on the afternoon of the same day. In order to be present at the several trials, Redshaw left his home on the evening of September 5th, and arrived in Baltimore the next morning, appeared, was tried, and judgment was rendered, in both cases, whereupon Redshaw left Baltimore city for his residence in Pennsylvania on the first available train after the trial of the second case. The sole purpose Redshaw had in leaving his domicile in the state of Pennsylvania and coming into the state of Maryland, and there remaining only for such length of time as was necessary for the trial of the two cases, was to appear at each trial in order to prevent the forfeiture of the collateral deposited for his appearance at the trial in the traffic court; to defend each prosecution, and, in the course of defense, to testify in his own behalf in each case.

Redshaw accordingly went to the traffic court at 9 o'clock in the morning and, about half an hour later, while he was waiting in the courtroom for his case to be called for trial before the presiding justice and to testify as a witness and present his defense to the crime with which he was charged, a deputy sheriff of Baltimore city, in the actual presence of the presiding justice who was then engaged in the trial of cases in that day's assignment, produced a summons, issued out of the court of common pleas of Baltimore city in the said case of Frank Feuster, an infant, by Frank M. Feuster, his father and next friend, against the said Joseph Redshaw and Joseph Whiteley, and then and there served said summons upon the said Joseph Redshaw; and, in consequence thereof, the said defendant was returned summoned in said action, where he appeared specially for the sole purpose of filing his motion to quash the writ of summons. The law is settled in Maryland that a nonresident who comes into this state either as a witness or as a party plaintiff or defendant in a civil action is, while for that purpose coming, staying, and returning in good faith and without unreasonable delay, exempt from the service of process for the commencement of a civil action against him in this state. Bolgiano v. Gilbert Lock Co., 73 Md. 132, 20 A. 788, 25 Am. St. Rep. 582; Long v. Hawken, 114 Md. 234, 79 A. 190, 42 L.

R. A. (N. S.) 1101; Blick v. Cockins, 131 Md. 626, 102 A. 1022; Minch & Eisenbrey Co. v. Cram, 136 Md. 122, 110 A. 204.

The only exception to the uniform enforcement of this rule that is known to the court is the decision in Mullen v Sanborn & Mann, 79 Md. 364, 29 A. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421. In that appeal the exemption was denied in favor of a nonresident party who, after having caused an attachment to be issued on original process against a citizen of this state that is quashed, is, while voluntarily appearing to testify in his own behalf at the trial of the short note case, summoned in an action against him at that time begun in this state by the debtor for damages for wrongfully and maliciously causing the attachment to be issued. As pointed out in the opinion, the nonresident had availed himself of a drastic remedy, which was not allowed except upon having first given a bond of indemnity, which in most cases is the only source of compensation for an injury resulting to the alleged debtor, but which cannot be put in suit unless an action against the plaintiff for wrongfully suing out the attachment has first been prosecuted to judgment. And, furthermore, the court stated that the value of the bond as a security to the alleged debtor and as a means of preventing the fraudulent and reckless abuse of the process of the court will be greatly diminished, if not, in many cases, made absolutely worthless, if the nonresident plaintiff could not be sued in the jurisdiction whose processes he had invoked, but only where he resided. The language used by the court in this connection is significant of the exceptional nature of the case, and of the ground upon which the decision rests: "The appellee having failed to prosecute his attachment with success, and the appellant having sued him in the court where the bond was filed to...