Lewis v. Miller, Judge

• Decision Date: 20 May 1903
• Parties: Lewis v. Miller, Judge.
• Court: Kentucky Court of Appeals

115 Ky. 623

Lewis v. Miller, Judge.

Court of Appeals of Kentucky.

May 20, 1903.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

WRIT DENIED.

R. H. CUNNINGHAM AND W. PRATT DALE, ATTORNEYS FOT PETITIONER.

HARRIS & MARSHALL, FOR DEFENDANT, MILLER.

OPINION OF THE COURT BY CHIEF JUSTICE BURNAM — DENYING WRIT.

The plaintiff, Katherine D. Lewis, has applied to this court for a writ of prohibition against the Honorable Shackelford Miller, judge of the First division of the chancery branch of the Jefferson circuit court, to prevent him from proceeding with the trial of an action instituted against her in the Jefferson circuit court by the Citizens' National Bank of Louisville. She alleges, in substance, that in January, 1875, the Citizens' National Bank recovered a judgment against her father, Blanton Duncan, deceased, for $1,750, with interest, upon which execution issued, and was returned, "No property found;" that on the 16th day of March, 1903, the bank instituted a suit against her on the debt, alleging that she had received more than the amount of their judgment from the estate of her father, as heir at law; and that summons was served upon her on this suit while she was temporarily in Kentucky for the purpose of testifying as a witness in an appeal which she had taken from the judgment of the Jefferson county court probating the will of her father; that she entered her special appearance in the action filed against her, and moved the court to quash the summons which was served upon her on the ground that she could not be legally sued under the circumstances; that Judge Miller overruled her motion to quash the summons, and will, unless prohibited by this court, proceed to hear and determine the action.

In support of this motion, we have been referred to numerous decisions of courts of last resort in other States, holding, in substance, a suitor or witness to be exempt from the service of process while without the jurisdiction of his residence for the purpose of attending court in an action to which he is a party, or in which he is to be sworn as a witness. But this exact question seems not to have been adjudicated by the courts of this State. But in Catlett v. Morton, 14 Ky., 122, a member of the Legislature, while attending its deliberations, was sued for debt in the Franklin circuit court, and he pleaded his privilege as a member under the constitutional provision which provides: "No person or persons shall under any pretense, directly or indirectly, or by any ways or means whatever, arrest, assail, menace or otherwise disturb the person of a member during his privilege except on legal process for treason, felony or breach of the peace." But it was held by this court, in an opinion by Judge Mills, that the only effect of this provision was to protect members from arrest, and that they were subject to the execution of any other process as other citizens. The rule...