Husby v. Emmons

• Decision Date: 09 July 1928
• Docket Number: 21162.
• Citation: 268 P. 886,148 Wash. 333
• Parties: HUSBY v. EMMONS.
• Court: Washington Supreme Court

268 P. 886

148 Wash. 333

HUSBY v. EMMONS.

No. 21162.

Supreme Court of Washington

July 9, 1928

Department 2.

Appeal from Superior Court, King County; John A. Frater, Judge.

Action by Joseph O. Husby, individually and as executor of the last will and testament of Alma H. Husby, deceased, against Harold Emmons. From order sustaining motion to quash service of summons, plaintiff appeals. Order reversed, with instructions to overrule motion.

Farrell Meir & Meagher and Tom Emory De Wolfe, all of Seattle, for appellant.

Bausman Oldham & Eggerman, of Seattle, for respondent.

BEALS J.

On September 23, 1927, the defendant, Harold Emmons, left his home in Portland, Or., and proceeded to Seattle, Wash., for the purpose of visiting his sister who was a resident of that city, intending to return to his home on Monday, September 26th. On the evening of Saturday September 24, 1927, defendant, in operating an automobile in the city of Seattle, collided with an automobile driven by one Kenneth D. Otis, with the result that the car driven by Emmons struck Alma H. Husby, who was then standint upon a nearby sidewalk, inflicting upon her injuries which almost immediately caused her death. After the accident, a member of the police force of the city of Seattle took defendant in custody; he in a few hours being permitted to go on his own recognizance, upon agreeing to remain in Seattle until after the coroner's inquest, which was to be held on Tuesday, September 27th. The defendant kept his word and remained in Seattle until after the inquest, when he was informed by the prosecuting attorney that he could consider himself released from custody and free to depart. On the Monday prior to the inquest, defendant, pursuant to instructions from the prosecuring attorney, reported to the coroner and there accepted service of a verbal subpoena to attend the inquest to be held the next day. While in the attendance at the inquest, under the circumstances above narrated, before testifying and before being discharged from custody, Emmons was served with the summons in this action which is brought against him and Kenneth D. Otis jointly for the purpose of recovering damages for the death of Mrs. Husby. The foregoing facts appear from plaintiff's complaint or from the affidavit of defendant, and for the purposes of this appeal are assumed to be true.

The defendant appeared in the action specially and moved to quash the service of summons, basing his motion upon the files and the records of the cause and upon his affidavit stating certain of the facts above set forth. The trial court, being of the opinion that the undisputed facts showed that the defendant, Emmons, was on the day he was served with the summons in this action entitled to immunity from service of civil process in the state of Washington by reason of the fact that he was then held in this state under constraint and was attending the coroner's inquest as a witness, sustained the motion to quash and entered an order dismissing the defendant, Harold Emmons, from the action. To the entry of this order plaintiff excepted, and from it appeals to this court.

Respondent contends that, because he was a resident of the state of Oregon and was on the day, he was served with process in this action in the state of Washington under arrest as suspect of having been guilty of an offense and was waiting to testify as a witness before the coroner, he having been regularly subpoenaed to attend the inquest, he was entitled to immunity from service of civil process, and that the courts of Washington could not, during the time he was so detained in this state, over his objection properly presented, obtain jurisdiction over him by service of a summons in a civil action.

This precise question has not been determined in this state. In the case of Groundwater v. Town, 93 Wash. 384, 160 P. 1055, this court upheld the jurisdiction of the superior court in a civil action, obtained by service of summons upon a resident of the state of Montana, who was temporarily in the state of Washington, to settle, as he claimed, a matter in connection with the redemption of certain of his property which had been sold under execution issued out of the superior court. It was held that, even assuming that the business of the defendant in the state of Washington was such as to entitle him to immunnity during his stay, it was evident that he had remained here longer than was reasonably necessary for the accomplishment of his purpose, and, the delay being unexplained, he was not entitled to immunity under the circumstances shown.

In the later case of State ex rel. Gunn v. Superior Court, 111 Wash. 187, 189 P. 1016, this court, sitting en banc, in a five to four decision, held that a resident of Nevada, coming to the state of Washington to defend a civil action pending against her in the courts of this state, was immune from service of process made upon her in a new suit upon the same cause of action which she had come here to defend; plaintiffs in that action having taken a voluntary nonsuit upon the case being called for trial. The majority opinion calls attention to the fact that there exist two lines of autority upon the question then before the court for consideration, and this court elected to follow the majority rule, holding that, under the facts as they appeared in the case then to be decided, the service of process was not good and should be quashed. The court expressly reserved the question as to the immunity of a person concerned in a criminal proceeding, stating (page 189, 189 P. 1016), 'We are not concerned here with the privilege existing in criminal actions, * * *' and for that reason the case is not controlling here.

The question of immunity from service of civil process under circumstances approximating the conditions now before us has been before the courts of many jurisdictions, and the different rules which have been laid down to fit particular cases are extremely confusing and cannot be reconciled. The Court of Appeals of New York, in the case of Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962, 27 L. R. A. (N. S.) 333, 134 Am. St. Rep. 886, referring to this question, says:

'Volumes of opinions have been written in which one can find all sorts of conflicting decisions and almost any dictum that one may be looking for. The ease with which the writer of an opinion upon even the simplest phase of this subject could drift into a general dissertation upon it is nicely illustrated in the voluminous note to Mullen v. Sanborn (a Maryland case reported in 25 L. R. A. 721), where the industrious author has gathered the cases from almost every state in the Union and from England.'

In the New York case the defendant, a resident of Ohio, went voluntarily to New York, and, while there,...