Lingemann v. Dehnke

• Decision Date: 08 July 1929
• Docket Number: Motion No. 157.
• Citation: 247 Mich. 597,226 N.W. 259
• Parties: LINGEMANN v. DEHNKE, Circuit Judge.
• Court: Michigan Supreme Court

247 Mich. 597

226 N.W. 259

LINGEMANN

v.DEHNKE, Circuit Judge.

Motion No. 157.

Supreme Court of Michigan.

July 8, 1929.

Original petition for writ of mandamus by Adrian Lingemann against Herman Dehnke, Circuit Judge. Writ denied.

Argued before the Entire Bench. Bert V. Nunneley, of Mt. Clemens (Douglas W. Ball and John H. Nunneley, both of Mt. Clemens, of counsel), for plaintiff.

Dunham & Cholette, of Grand Rapids (Walter Schweikart, of Detroit, and L. Frank McKnight, of Grand Rapids, of counsel), for defendant.

McDONALD, J.

The plaintiff asks for a writ of mandamus to compel the defendant to set aside a certain order entered on June 30, 1929, quashing service of summons upon one Elmer Kirchofer. On October 8, 1928, a truck driven by Kirchofer in the village of St. Clair Shores, Macomb county, Mich., collided with an automobile owned by the plaintiff. Immediately after the collision Kirchofer left the truck to report the accident. While he was gone, the chief of police tied a tag on the truck notifying him to appear in justice court on the 10th of October, 1928, to answer a charge of reckless driving. Kirchofer was a resident of Wayne county. He did not appear on the 10th, but his attorney arranged with the justice to have the hearing adjourned to the 26th. When he appeared on that day, the plaintiff who in the meantime had instituted a suit for damages caused a summons to be served on him. He moved to quash the service on the ground that he was not a resident of Macomb county and at the time was exempt from service of civil process by virtue of section 12446, Comp. Laws 1915. The circuit judge adopted this view and entered an order quashing the service. The plaintiff here seeks a writ of mandamus to compel him to set aside this order.

Mr. Kirchofer claims exemption from service of the summons in this case by virtue of the statute, section 12446, Comp. Laws 1915, the applicable portion of which provides that any party or witness who is in attendance on a ‘suit or proceeding’ in a county in which he does not reside is exempt from the service of civil process issued out of any other suit commenced in that county. He was a resident of Wayne county. At the time of the service of the summons in question he was attending a proceeding of some kind in a justice court in Macomb county. Was it such a proceeding as entitles him to the privilege afforded by the statute? In People ex rel. Watson v. Judge of Superior Court of Detroit, 40 Mich. 729, Mr. Justice Cooley said: ‘There is no doubt whatever that the privilege exists in the case of all proceedings in their nature judicial, whether taking place in court or not.'

And in 21 Ruling Case Law, p. 1309, the scope of the privilege is stated as follows: ‘Originally the exemption from process by privilege could be invoked only for attendance on courts, but it is now extended so as to embrace every proceeding of a judicial nature, taken in or eminating from a duly instituted judicial tribunal, which directly relates to the trial of the issues involved.'

In this case the question is, Was Mr. Kirchofer in attendance on a judicial proceeding before the justice of the peace in Macomb county when he was served with the summons?

On the day of the collision, he received the following notice from the chief of police of the village of St. Clair Shores:

‘No. 2988

Dated October 8, 1928.

‘To Elmer Kirchofer, Defendant.

‘Address ________.

‘You are hereby notified that I shall forthwith file a sworn complaint against you in court for the village of St. Clair Shores, because of your violation, this date, of the laws indicated below:

‘X Reckless driving.

‘Place where violation occurred: Violet Boulevard and Harper Avenue.

‘I shall be present at the session of the justice court at town hall, Harper and Town Hall Road, to be held on October 10, 1928, at 7:30...