Linton v. Cooper

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

54 Neb. 438

74 N.W. 842

LINTON

v.COOPER.

Supreme Court of Nebraska.

April 8, 1898.

Syllabus by the Court.

1. A nonresident suitor or witness, who comes into this state for the sole purpose of attending the trial of a cause pending therein, as a party or witness, is privileged from service of civil process not only while coming to, returning from, and attending upon, the court, but for a reasonable time after the hearing to prepare for his return home.

2. What constitutes a reasonable time for a party or witness to take his departure is a question of fact, to be determined from the evidence adduced in each particular case.

Error to district court, Douglas county; Keysor, Judge.

Action by Adolphus F. Linton against John W. Cooper. Judgment for defendant, and plaintiff brings error. Affirmed.John T. Cathers and William A. Redick, for plaintiff in error.

Charles A. Goss, for defendant in error.

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 nonresident, 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 Phœbe R. E. E. Linton and Adolphus Fredrick Linton were plaintiffs and John Whittaker 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 Tuesday, October 11th, 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 20th; that the defendant herein was present during the entire trial of that cause in the capacity of defendant and witness; that on October 11th, and within 15 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 Phœbe R. E. E. Linton, and within an hour thereafter he was served with another summons in an action brought by said Phœbe 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 (Neb.) 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;Bank v. Ames, 39 Minn. 179, 39 N. W. 308;Mulhearn v. Publishing Co., 53 N. J. Law, 150, 20 Atl. 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. 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. St. 22, 36 Atl. 419;Kinne v. Lant, 68 Fed. 436;Smythe v. Banks, 4 Dall. 329. Judge Thomson, in Christian v. Williams, 35 Mo. App. 297, uses this language: “The reason which extends the immunity to a nonresident 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...