Hale v. Wharton

• Decision Date: 27 April 1896
• Citation: 73 F. 739
• Parties: HALE v.WHARTON et al. v. SAME. TOLEDO CONSOL. ST. RY. CO.
• Court: U.S. District Court — Western District of Missouri

73 F. 739

HALE v.WHARTON et al.

TOLEDO CONSOL. ST. RY. CO. v. SAME.

United States Circuit Court, W.D. Missouri, Western Division.

April 27, 1896

Lathrop Morrow, Fox & Moore, for plaintiffs.

Gage Ladd & Small, for defendants.

Before ADAMS and PHILIPS, District Judges.

PHILIPS District Judge.

As the above-entitled cases present the same issues, they will be considered and determined together.

On the 12th day of December, 1895, the above-named defendants resident citizens of the state of Pennsylvania, had pending in this court a suit at law against the Grand Avenue Hotel Company, a Missouri corporation, resident of this district. The defendant Wharton had come here in response to a letter from his counsel advising him of the importance of his presence at the trial of said cause. The cause was set down for trial on the 12th day of December, 1895, but on account of the indisposition of counsel for defendants the trial was postponed for one day. Just as the defendant Wharton was leaving the court room on said 12th day of December, 1895, he was served within this building, by the sheriff, with a summons at the suit of plaintiffs, instituted at that time in the state circuit court of Jackson county against said defendants, as partners. Apprehensive that a question possibly might arise as to the legality of a service made within the federal building, on the territory of the United States, plaintiff caused another summons to be served on defendant the same day, at his hotel, in this city. The attorneys for the plaintiff are the same as those of the Grand Avenue Hotel Company in its said suit. On the return day of said writs the defendant Wharton appeared in said court, as expressed in the motion, so for the purpose of applying for the removal of said cases into this court. The removal was accordingly made, and the defendant has moved here to set aside and vacate the said returns of service, on the ground that he was exempt from such process under the foregoing state of facts. This is the question to be decided.

It is perhaps, not too much to say that no rule of practice is more firmly rooted in the jurisprudence of United States courts than that of the exemption of persons from the writ of arrest and of summons while attending upon courts of justice, either as witnesses or suitors. Parker v. Hotchkiss, 1 Wall.Jr. 269, Fed. Cas. No. 10,739; Bank v. McSpedan, 5 Biss. 64, Fed. Cas. No. 7,582; Bridges v. Sheldon, 7 Fed. 42; Plimpton v. Winslow, 9 Fed. 365; Larned v. Griffin, 12 F. 590; Small v. Montgomery, 23 F. 707; Atchison v. Morris, 11 F. 582; Nichols v. Horton, 14 F. 329; Lyell v. Goodwin, 4 McLean, 39, Fed. Cas. No. 8,616; Kinne v. Lant, 68 F. 436. The rule in the English courts at first was limited to exemption from arrest in a criminal proceeding, and as arrest for debt obtained in practice there, as in some of the American states, the rule was extended to process in indebitatus assumpsit. Law is a progressive science, and, in its struggle to reach the highest of practical justice, its principles, in the development of civilized society, are constantly being extended to meet the demands of an ever-increasing, refining sense of justice. The exemption from criminal process of witnesses while attending court was predicated of the assumption, first, that it was calculated to disturb and divert the witness so that on the witness stand his mind might not possess that repose and equipoise essential to a full and true deliverance of his testimony. It was therefore, on principle, extended to civil process against him. Next in the natural order of development the rule was extended to suitors coming from foreign jurisdictions to attend upon the trial of their causes, for the reason that they 'might be deterred from the fearless assertion of a claim, or rightful or fearless assertion of a defense, if they were liable to visits on the instant with writs from the defeated party. ' As said by Judge Shiras in Nichols v. Horton, 14 F. 330:

'Experience has shown that in order that causes may be fully heard, and the orderly administration of justice may be assured, it is necessary that parties, witnesses, and jurors shall be protected from service of process in civil actions while they are, in good faith, in attendance upon the trial of causes. If parties or witnesses are liable to be sued when in attendance upon the court in which the cause with which they are connected is pending, and by reason thereof they may be compelled to appear and answer in a foreign tribunal, or in one different and far distant from that wherein they could alone have been sued, had they not been in attendance upon the court, the fear thereof might well deter them from attending at the place of trial; and, if they were beyond the reach of a subpoena, a party might, as a consequence, be deprived of the personal presence and testimony of witnesses whose absence would be fatal to his cause.'

A like rule obtains in a great majority of the states of the Union, only a few of which we here cite: Bank v. Ames, 39 Minn. 179, 39 N.W. 308; Thompson's Case, 122 Mass. 428; Person v. Grier, 66 N.Y. 124; Matthews v. Tufts, 87 N.Y. 568; Halsey v. Stewart, 4 N.J.Law, 367; In re Healey, 53 Vt. 694; People v. Judge of Superior Ct., 40 Mich. 729; Mitchell v. Circuit Judge, 53 Mich. 541, 19 N.W. 176; Massey v. Colville, 45 N.J.Law, 119; Miles v. McCullough, 1 Bin. 76; Hayes v. Shields, 2 Yeates, 222; U.S. v. Edme, 9 Serg.& R. 147; Andrews v. Lembeck, 46 Ohio St. 38, 18 N.E. 483; Henegar v. Spangler, 29 Ga. 217; Ballinger v. Elliott, 72 N.C. 596. This rule is buttressed with the high conception that as courts are established for the ascertainment of the whole truth, and the doing of exact justice, as far as human judgment can attain, in disputes between litigants, every extraneous influence which tends to interfere with or obstruct the trial for the attainment of this sublime end should be resisted by the ministers of justice to the last legitimate extremity in the exercise of judicial power. Hence, as 'one of the necessities of the administration of justice' (Person v. Grier, 66 N.Y. 124), the rule has come to be regarded as the privilege of the court, as affecting its dignity and authority and rests, therefore, upon sound public policy. Parker v. Hotchkiss, supra, approved by Justice Grier and Chief Justice Taney; Bank v. McSpedan, supra; Lyell v. Goodwin, supra; Huddeson v. Prizer, 9 Phila. 65; and authorities supra. Southard, J., in Halsey v. Stewart, 4 N.J.Law, 367, has pungently expressed this principle:

'Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them. The citizen, in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach them, not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. * * * Now, this great object in the administration of justice would, in a variety of ways, be obstructed, if parties and witnesses were liable to be served with process while actually attending court. It is often matter of great importance to the citizen to prevent the institution and prosecution of a suit in any court at a distance from his home and his means of defense, and the fear that a suit may be commenced there by summons will as effectually prevent his approach as if a capias might be served upon him. This is especially the case with citizens of neighboring states, to whom the power which the court possesses of compelling attendance cannot reach. Take the case of the present defendant. He doubtless knew of the plaintiff's claim, and was unwilling to have it tried out of his own state. Had his attendance as a witness been absolutely necessary, would he have come, unless this privilege were thrown around him? Surely not. Either, then, injustice must have been done, or the progress of the court interrupted. Such consequences should be guarded against. Whether a man wishes to attend the court as a party or witness, he should be able to do it under protection. This privilege of parties ahead witnesses is alike the privilege of the court and the citizen. It protects the court from interruption and delay. It takes away a strong inducement to disobey its process, and enables the citizen to prosecute his rights without molestation, and procure the attendance of such as are necessary for their defense and support.'

It may be conceded to plaintiffs' contention, that, in most of the reported cases supporting the rule in question, it was where the party complaining of the service of process was a defendant suitor, who had been brought from out of his state to defend suit against him. But, on principle, I am unable to perceive any distinction in the privilege, both of the suitor and the court, between a plaintiff and defendant-- especially so when applied to the facts of this case. The Grand Avenue Hotel Company was a Missouri corporation, domiciled at Kansas City. The plaintiff, Wharton, was compelled to come into this jurisdiction to enforce his claim against the corporation. He had no choice as to the forum. Being both a suitor and a competent witness in the cause, he had to come here to properly protect his interests, in the judgment of his counsel. Nor are these plaintiffs in position to invoke any special equity predicated of mere case law. They are not even in the position of plaintiffs who 'found' the defendant by chance in the forum of their domicile. But they are citizens of the state of Illinois, who come out of their own home jurisdiction, under no necessity to do so, with full knowledge, through their attorneys, of the circumstances under which Wharton was in...