Linn v. Hagan's Adm'x

• Citation: 87 S.W. 1101,121 Ky. 627
• Parties: LINN v. HAGAN'S ADM'X.
• Decision Date: 13 June 1905
• Court: Court of Appeals of Kentucky

87 S.W. 1101

121 Ky. 627

LINN v. HAGAN'S ADM'X.

Court of Appeals of Kentucky.

June 13, 1905

Appeal from Circuit Court, Bullitt County.

"Not to be officially reported."

Appeal by J. H. Linn against Francis J. Hagan's administratrix. Motion by the administratrix to quash process on appeal. Overruled.

Greene & Vanwinkle and N.W. Halstead, for appellant.

F Hagan, for appellee.

HOBSON C.J.

On December 21, 1903, F. J. Hagan recovered judgment against J H. Linn in the Bullitt 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. At the time of his death, F. J. Hagan was a resident of Alabama. His will was probated there, and appellee was appointed executrix in Alabama, and qualified there. She has not been appointed in Kentucky, and has not qualified here. She is a resident of Alabama. Section 542 of the Civil Code 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...