Linn v. Hagan's Adm'x

• Decision Date: 30 May 1905
• Citation: 87 S.W. 763
• Parties: LINN v. HAGAN'S ADM'X. [*]
• Court: Kentucky Court of Appeals

87 S.W. 763

LINN v. HAGAN'S ADM'X. ^[*]

Court of Appeals of Kentucky.

May 30, 1905

Appeal from Circuit Court, Bullitt County.

"To be officially reported."

Action by Francis J. Hagan against J. H. Linn. From a judgment in favor of plaintiff, defendant appeals, suggesting the death of the plaintiff. On motion of Mary J. Hagan, administratrix of Francis J. Hagan, deceased, to quash process. Motion overruled.

Greene & Van Winkle and N. A. Halstead, for appellant.

F Hagan, for appellee.

HOBSON C.J.

On December 21, 1903, F. J. Hagan recovered a judgment against J. H. Linn in the Jefferson circuit court. On March 21, 1905 Linn filed a transcript of the record in this court and filed with the record a statement of the parties to the appeal from which it is shown that F. J. Hagan is dead, and that Mary J. Hagan is the administratrix of his estate. Process was issued upon the appeal, and served upon the administratrix in Bullitt county. She has entered a motion to quash the process, and in support of the motion has filed an affidavit in which she says that when the process was served upon her she was in Bullitt county as a witness for the commonwealth, to testify on the trial of one Barbour indicted for the murder of her husband, F. J. Hagan; that she was ordered by the court to attend, and, in obedience to the order of the court, came from her home, near Montgomery Ala., to testify on the trial. Section 542 of the Civil Code of Practice is relied on: "A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county while going, returning, or attending, in obedience to a subp na." This section has no application. It refers only to the venue. While a witness may not be sued in a county in which he does not reside by being served with a summons in that county while attending in obedience to a subp na, he may be sued in his own county, or in a county where the court would otherwise have jurisdiction, and may be served with a summons while attending under the subp na. The purpose of the section is simply to prevent the courts of the county where a witness is in attendance under a subp na from acquiring jurisdiction over him by the service of process in that county while he is there in obedience to the subp na. In Lewis v. Miller, 74 S.W. 691, 24 Ky. Law Rep. 2533, the heir at law under the will had come to Kentucky to testify as a witness in an appeal which she had taken from the order of the county court probating her ancestor's will, and while here was sued by a creditor of the estate. It was held, after an...