First National Bank of St. Paul v. Ames

• Decision Date: 31 August 1888
• Citation: 39 Minn. 179
• Court: Minnesota Supreme Court
• Parties: FIRST NATIONAL BANK OF ST. PAUL <I>vs.</I> ADELBERT AMES and others.

Page 179

39 Minn. 179

FIRST NATIONAL BANK OF ST. PAUL vs. ADELBERT AMES and others.

Supreme Court of Minnesota.

August 31, 1888.

Appeal by plaintiff from an order of the district court for Ramsey county, Simons, J., presiding, setting aside the service of a summons issued after judgment.

Henry Burleigh Wenzell and Francis B. Tiffany, for appellant.

Benton & Roberts, for respondent.

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, 37 Minn. 118, (33 N. W. Rep. 549.) 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. 568; Merrill v. George, 23 How. Pr. 331; Sanford v. Chase, 3 Cow. 381. 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 examiner 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 Gen. St. 1878, c. 66, § 287, requiring him to show cause why he should not be bound by the judgment, in the action first mentioned, in the same manner as if he had been originally summoned. The service of...