Lacharite v. District Court of Fifth Judicial Dist., in and for Bannock County

• Decision Date: 28 April 1953
• Docket Number: No. 7980,7980
• Citation: 74 Idaho 65,256 P.2d 787
• Parties: ., IN AND FOR BANNOCK COUNTY et al. TIPTON et ux. v. DISTRICT COURT OF FIFTH JUDICIAL DIST., IN AND FOR BANNOCK COUNTY et al. Supreme Court of Idaho
• Court: Idaho Supreme Court

Page 787

256 P.2d 787

74 Idaho 65

LACHARITE et ux. v. DISTRICT COURT OF FIFTH JUDICIAL DIST., IN AND FOR BANNOCK COUNTY et al.

TIPTON et ux. v. DISTRICT COURT OF FIFTH JUDICIAL DIST., IN AND FOR BANNOCK COUNTY et al.

No. 7980.

Supreme Court of Idaho.

April 28, 1953.

O. R. Baum, R. M. Whittier and Mark B. Clark, Pocatello, for appellant.

Zener & Peterson, Pocatello, for defendant Stenerson.

THOMAS, Justice.

Stenerson, a nonresident, was served with summons in two actions, one entitled William A. Lacharite and Wauneita F. Lacharite, husband and wife, Plaintiffs, v. I. S. Stenerson, as an individual, and also doing business under the firm name and style of Builtrite Homes; Smith-Marshall Agency, Inc., a corporation, and International Oil Burner Company, a corporation, Defendants, and the other, Henry C. Tipton and Faye M. Tipton, husband and wife, Plaintiffs, v. I. S. Stenerson, as an individual, and also doing business under the firm name and style of Builtrite Homes; Smith-Marshall Agency, Inc., a corporation, and International Oil Burner Company, a corporation, Defendants, while in attendance at the District Court of the Fifth Judicial District, Pocatello, Bannock County, Idaho, during trial of another case against him and the other defendants by other parties plaintiff.

Stenerson, a building contractor, during a period of some four years had constructed approximately two hundred homes in the Pocatello area which he sold to individuals. Following completion of the homes, Stenerson left the state of Idaho. Subsequently, the purchaser of one of such homes brought an action against all the defendants to recover the amount necessary to expend to complete the home in accordance with the representations allegedly made. During the trial of that case service of summons in the instant cases, as well as in some three additional like cases, was made upon Stenerson. All of these actions so filed, including the one which was tried, are identical in character and each arose out of the same general subject matter.

Stenerson made a special appearance in these two cases wherein he asked the court to quash the service of summons on the ground that he was privileged and immune from such service since at the time thereof he was within this state as a party defendant in another civil action then being tried in Bannock County, Idaho, and that he was present solely to defend himself in said action.

The motion to quash the service of summons was granted and the petitioners herein then petitioned this court for a writ of review, seeking to have this court declare the service in each case valid in order that they might be tried and heard upon their respective merits.

The sole and narrow question presented for determination by the record, and as conceded by defendant, is whether or not a nonresident defendant within the state of Idaho, while actually in attendance at a trial of a civil action filed against him by a resident of this state, can be lawfully served with a summons in another civil action instituted against him by other residents of Idaho.

We are not herein concered with the privilege or immunity of nonresident witnesses or attorneys nor with that of a nonresident plaintiff.

It would serve no useful purpose to, hence we will not engage in any extended discussion of the origin, history, development and numerous variations of the rule with respect to the immunity of nonresident suitors from service of process while in attendance in court. An extended discussion thereof is found in Fisher v. Bouchelle, W.Va., 61 S.E.2d 305. One's reaction from an examination of this subject is well and accurately expressed 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, as follows:

'This question, based upon the undisputed facts of this record, is very narrow, but it relates to a subject which has for centuries engaged the attention of common-law courts under every conceivable variety of circumstances. 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. * * *'

Generally, the privilege of immunity from service of civil process on nonresident suitors is not covered by statute but rests on grounds...