First Nat. Bank of St. Paul v. Ames

• Decision Date: 31 August 1888
• Citation: 39 Minn. 179,39 N.W. 308
• Parties: FIRST NAT. BANK OF ST. PAUL v AMES ET AL.
• Court: Minnesota Supreme Court

39 Minn. 179

39 N.W. 308

FIRST NAT. BANK OF ST. PAULvAMES ET AL.

Supreme Court of Minnesota.

August 31, 1888.

(Syllabus by the Court.)

A non-resident party to an action here is privileged from liability to suits commenced by summons while necessarily and in good faith attending the trial thereof, or an examination therein before a referee or master in chancery.

Such exemption applies to the case of the service of a summons issued in pursuance of section 287, c. 66, Gen. St. 1878.

Appeal from district court, Ramsey county; SIMONS, Judge.

Henry Burleigh Wenzell and Francis B. Tiffany, for First National Bank of St. Paul, appellant.

Benton & Roberts and Rome G. Brown, for Ames et al., respondents.

VANDERBURGH, J.

Non-resident witnesses are exempt from the service of civil process upon them while attending to give evidence in causes pending in the courts of this state. Sherman v. Gundlach, 33 N. W. Rep. 550. And the principle upon which this exemption rests applies as well to parties as witnesses. In respect to arrest upon civil process, the common-law rule was that suitors, witnesses, and other persons necessarily attending any court were not to be arrested during their actual attendance, which included their necessary coming and returning. 3 Black. Comm. *289; 1 Greenl. Ev. § 316. It was always the policy of the common law that witnesses should be produced for oral examination, and that parties should have full opportunity to be present and heard when their cases are tried. In furtherance of this policy, and the due administration of justice, and as an inducement to secure their attendance, suitors and witnesses from abroad are privileged from liability to suits commenced by summons as well as by capias. Massey v. Colville, 45 N. J. Law, 119; Matthews v. Tufts, 87 N. Y 570;Merrill v. George, 23 How. Pr. 332;Sanford v. Chase, 3 Cow. 382. And there is no difference in principle or practice whether the parties are necessarily and in good faith attending the trial of an action in court or an examination before a referee or a master in chancery, as in this instance. 1 Greenl Ev. § 317.

In the case at bar it appears that the defendant Adelbert Ames is a non-resident, but is a member of a partnership firm doing business in this state; that a judgment had been rendered in the district court for Ramsey county in favor of the plaintiff in an action against the partnership firm, in which action this defendant was not served with process, and which judgment, therefore, was enforceable only against the joint property of all the defendants, partners, and the separate property of the defendants served. On the 8th day of April, 1887, the defendant Adelbert Ames, while attending as a party and witness before an examination in chancery of the circuit court of the United States at the city of St. Paul, in a suit where he was also a defendant, was served with a summons in pursuance of section 287, c. 66, Gen. St. 1878, requiring him to show cause why he should not be bound by the judgment, in the action...