Hoffman v. Bay Circuit Judge

• Decision Date: 25 May 1897
• Citation: 71 N.W. 480,113 Mich. 109
• Court: Michigan Supreme Court
• Parties: HOFFMAN v. BAY CIRCUIT JUDGE.

71 N.W. 480

113 Mich. 109

HOFFMAN v. BAY CIRCUIT JUDGE.

Supreme Court of Michigan

May 25, 1897

Application on the relation of Henry Hoffman for mandamus against the Bay circuit judge. Writ granted.

Charles R. Brown, for relator.

C. L Collins, for respondent.

MONTGOMERY J.

Relator is an attorney at law, and at the October term of this court appeared and argued a cause in this court, and, while on his return to his home at St. Ignace, was served with a summons at the suit of John Godkin, a party to the case pending in this court. He moved to dismiss the proceeding on the ground that he was privileged from the service of process while attending upon the court, and while going to and returning from the court to the county of his residence. The circuit judge denied the motion, and the question is before us for review on mandamus.

The only statute of this state bearing upon the subject is section 7253, How. Ann. St., which reads: "All officers of the several courts of record shall be liable to arrest and may be held to bail in the same manner as other persons except during the actual sitting of any court of which they are officers; and when sued with any other person, such officers shall be liable to arrest, and may be held to bail as any other persons, during the sitting of the court of which they are officers; but no attorney, solicitor or counselor shall be exempt from arrest during the sitting of the court of which he is an officer, unless he shall be employed in some cause pending and then to be heard in such court." It is said by respondent's counsel that this statute should be held to exclude all other privilege, and that this only relates to arrest on civil process, and does not apply to the service of summons. We think the statute should not be so construed, but that if, at the common law the attorney was privileged from the service of process while attending upon court, that privilege has not been removed by the statute in question. In Tayl. Ev. p. 1126, the common-law rule is stated: "In order to encourage witnesses to come forward voluntarily, they are not only protected from any action for defamation with respect to such statements as they may make in the course of the judicial proceeding, but, in common with parties, barristers, solicitors, and, in short all persons who have that relation to a suit which calls for their attendance, they are protected from arrest upon any civil process, while going to the place of trial, while attending there for the purposes of the cause, and while returning home." In the case of Mitchell v. Circuit Judge, 53 Mich. 541, 19 N.W. 176, it was held by this court that as to parties the privilege extends to the service of summons, as well as to suit commenced by arrest. It was said that "public policy, the due administration of justice, and protection to parties and witnesses alike demand it." In Cofrode v. Circuit Judge, ...