Linton v. Cooper

• Decision Date: 08 April 1898
• Docket Number: 7964
• Citation: 74 N.W. 842,54 Neb. 438
• Parties: ADOLPHUS F. LINTON v. JOHN W. COOPER
• Court: Nebraska Supreme Court

74 N.W. 842

54 Neb. 438

ADOLPHUS F. LINTON v. JOHN W. COOPER

No. 7964

Supreme Court of Nebraska

April 8, 1898

ERROR from the district court of Douglas county. Tried below before KEYSOR, J. Affirmed.

AFFIRMED.

John T Cathers and William A. Redick, for plaintiff in error.

In arguing the point that defendant was not privileged from service of process at the time the summons was served upon him, reference was made to the following cases: Palmer v Rowan, 21 Neb. 452; Clark v. Grant, 2 Wend. [N Y.] 257; Baldwin v. Emerson, 15 A. [R. I.] 83; Baisley v. Baisley, 21 S.W. 29 [Mo.]; Page v. Randall, 6 Cal. 32; Bishop v. Vose, 27 Conn. 1; Capwell v. Sipe, 23 A. [R. I.] 14; Selby v. Hills, 8 Bing. [Eng.] 165; Spence v. Stuart, 3 East [Eng.] 89; Catlett v. Morton, 4 Lit. [Ky.] 122; Smythe v. Banks, 4 Dall. [U. S.] 329; Nichols v. Horton, 14 F. 329; Moletor v. Sinned, 44 N.W. 1099 [Wis.].

Charles A. Goss, contra:

Parties and witnesses are exempt from service of process for a reasonable time, and the privilege extends to non-residents. (Thompson's Case, 122 Mass. 428; Palmer v. Rowan, 21 Neb. 452; Ex parte McNeil, 6 Mass. 245; Wood v. Neale, 5 Gray [Mass.] 538; May v. Shumway, 16 Gray [Mass.] 86; Parker v. Hotchkiss, 1 Wall. Jr. [U. S.] 269; Halsey v. Stewart, 4 N. J. Law 420; Watson v. Judge, 40 Mich. 729; Mitchell v. Huron, 53 Mich. 541; Person v. Grier, 66 N.Y. 124; Matthews v. Tufts, 87 N.Y. 568; Bolgiano v. Gilbert Lock Co., 73 Md. 132; Capwell v. Sipe, 17 R. I. 475; Baisley v. Baisley, 113 Mo. 544; Page v. Randall, 6 Cal. 32; Bishop v. Vose, 27 Conn. 1.)

Cases referring to question of what is a reasonable time: Hatch v. Blisset, Gil. [Eng.] 308; Sidgier v. Birch, 9 Ves. Jr. [Eng.] 69; Ricketts v. Gurney, 7 Price [Eng.] 699; Persse v. Persse, 5 H. L. Cas. [Eng.] 670; Norris v. Beach, 2 Johns. [N. Y.] 294; Ex parte Hurst, 1 Wash. C. C. Rep. [U. S.] 186; Sahlinger v. Adler, 25 N.Y.S. 704; Jacobson v. Hosmer, 42 N.W. 1110 [Mich.].

OPINION

The opinion contains a statement of the case.

NORVAL, J.

This action was brought in the district court of Douglas county to recover the sum of $ 75,000. The defendant was personally served with summons in that county. He made special appearance in the cause and objected to jurisdiction of the court over his person, and moved to quash the service of the summons, on the ground that he was a non-resident and had been in attendance before the court in another cause as a witness, and a reasonable time had not elapsed after the trial thereof to enable him to return to his home. The service of process was set aside and the action dismissed.

The record discloses that the defendant is a British subject and a citizen and a resident of England; that on September 19 1894, he came to Omaha solely as a party and witness to be present at the trial of a cause then pending in the district court of Douglas county, wherein Phoebe R. E. E. Linton and Adolphus Frederick Linton were plaintiffs, and John Whitaker Cooper and others were defendants, with the intent to depart from Omaha at the earliest possible moment after the conclusion of the trial, which was commenced on Monday, October 1, 1894, continued from day to day until Thursday, October 11, at about 5 o'clock P. M. of that day, when the cause was submitted to the court, by it taken under advisement, and the decision therein announced on October 20; that the defendant herein was present during the entire trial of that cause in the capacity of defendant and witness; that on October 11, and within fifteen minutes of the close of the trial, defendant was served with a summons in a suit brought against him before a justice of the peace of Douglas county by the said Phoebe R. E. E. Linton, and within an hour thereafter he was served with another summons in an action brought by said Phoebe in said district court, and that summons in the present action was served upon defendant on Saturday, October 13, 1894, between 3 and 4 o'clock P. M. in the court house of Douglas county.

Public policy, the due administration of justice, and the protection of parties and witnesses demand that nonresident suitors and witnesses alike be protected from the service of civil process while necessarily in attendance upon court. This privilege or immunity extends to parties and witnesses not only while coming to, returning from, and in actual attendance upon, the court for the purpose of trial, but for a reasonable time after the hearing to prepare for departure. This is the settled doctrine of this and other courts. (Palmer v. Rowan, 21 Neb. 452, 32 N.W. 210; Mayer v. Nelson, 54 Neb. 434, 74 N.W. 841; Fisk v. Westover, 4 S.D. 233, 55 N.W. 961; Wilson v. Donaldson, 117 Ind. 356, 20 N.E. 250; First Nat. Bank of St. Paul v. Ames, 39 Minn. 179, 39 N.W. 308; Mulhearn v. Press Publishing Co., 53 N.J.L. 150, 20 A. 760; Parker v. Marco, 136 N.Y. 585, 32 N.E. 989; Andrews v. Lembeck, 46 Ohio St. 38, 18 N.E. 483; Jacobson v. Wayne Circuit Judge, 76 Mich. 234, 42 N.W. 1110; Gregg v. Sumner, 21 Ill.App. 110; Christian v. Williams, 35 Mo.App. 297; Partridge v. Powell, 180 Pa. 22, 36 A. 419; Kinne v. Lant, 68 F. 436; Smythe v. Banks, 4 U.S. 329, 22 F. Cas. 710, 1 L.Ed. 854.*) Judge Thompson, in Christian v. Williams, 35 Mo.App. 297, uses this language: "The reason which extends the immunity to a non-resident witness is, that he cannot be brought within the jurisdiction to testify by compulsory process; and as his testimony may be needed in order to the due administration of justice, he ought not to be deterred from coming by the possibility of being entangled in other litigation by reason of coming. The same reason extends in a measure to the presence of a litigating party. The due administration of justice is presumptively promoted by his being present at the trial of a cause to which he is a party, in order to instruct his counsel, and it is therefore prejudicial to the administration of justice that a rule should exist which may deter him from coming." There is some conflict among the decided cases, but, in weight and reason, the decisions range themselves in strong array in support of the principle announced in the foregoing excerpt.

The testimony adduced in support of the motion to set aside the service of process herein tends to show that after the conclusion of the hearing on October 11, 1894, defendant had a large amount of business to transact with his counsel in connection with said cause as a party litigant; that important features were to be discussed and contingencies to be provided for in relation thereto, since the decision had not been announced; that his personal effects and baggage were to be packed; that hundreds of...