Livengood v. Ball

• Decision Date: 05 December 1916
• Docket Number: Case Number: 6336
• Parties: LIVENGOOD et al. v. BALL et al.
• Court: Oklahoma Supreme Court

1916 OK 1008

162 P. 768

63 Okla. 93

LIVENGOOD et al. v. BALL et al.

Case Number: 6336

Supreme Court of Oklahoma

Decided: December 5, 1916

Syllabus

¶0 Process--Service--Exemptions.

Nonresident plaintiffs who voluntarily come within the jurisdiction of the courts of this state to attend the trial of litigation commenced by them against citizens of this state are not exempt from service of a summons in an action by defendants for relief connected with the subject of the litigation commenced by them when a full and complete adjustment of the rights of the parties cannot be had in the first action, and where full relief would be denied the citizens of this state in courts of the state of plaintiffs' residence.

Error from District Court, Oklahoma County; W. R. Taylor, Judge.

Action by C. R. Ball and others against G. W. Livengood and others. There was a judgment for plaintiffs, and defendants bring error. Affirmed.

Everest & Campbell, for plaintiffs in error.

B. O. Young and Warren K. Snyder, for defendants in error.

HARDY, J.

¶1 This case presents for review a judgment of the district court of Oklahoma county in favor of defendants in error, who were plaintiffs below, against plaintiffs in error, who were defendants below, for the sum of $ 3,041.60, interest and attorney's fees, as a penalty for the exaction of usurious interest. The parties will be referred to as they appeared in the trial court. The case of Livengood et al. v. Ball et al., ante, p. 90, 162 P. 766, presents some of the questions involved herein. That case was a suit to recover upon a note and foreclose a mortgage given as security therefor in which the defense was urged that said note was usurious, and that defendants therein had paid to plaintiffs therein an amount more than sufficient to discharge the indebtedness which they were legally entitled to recover. This action grows out of the same transaction, and it is conceded by counsel that, so far as the facts out of which the controversy grew are concerned, this case is governed by the decision in No. 5540.

¶2 The question whether the defendants were exempt from service of process in this suit remains for determination. They were in attendance upon the district court of Oklahoma county at the trial had in No. 5540, when they were served with summons, and it is claimed they were exempt therefrom, and their motion to quash the service of summons herein should have been sustained.

¶3 A certain phase of this question was before this court in Burroughs v. Cocke & Willis, 56 Okla. 627, 156 P. 196, L. R. A. 1916E, 1170, where it was held that a nonresident who voluntarily came within this state for the purpose of attending upon the taking of depositions to be used in the trial of a case pending in another jurisdiction in which he was plaintiff was privileged from service of summons while within the state upon that business, and that he did not forfeit this privilege merely because he transacted other business not connected with the taking of the depositions, provided the controlling cause of his being within the state was the taking of the depositions; but, because the trial court found that the controlling motive which brought him within the jurisdiction of the courts of this state was not the taking of such depositions, the party there was denied the exemption claimed. It was suggested by counsel that this doctrine of immunity had been generally extended only to defendants, and not plaintiffs, but in the opinion of Mr. Commissioner Matthews, it was said:

"Our investigation leads us to the conclusion that no distinction has generally been made between a plaintiff and a defendant, the reason for the rule including both alike."

¶4 And the opinion cites in support of this conclusion the case of Fisk v. Westover, 4 S.D. 233, 55 N.W. 961, 46 Am. St. Rep. 780. Defendants contended that they are within the rule as thus generally stated. Without going into an extensive discussion of the origin and history of this rule, it may be stated that a large number of the courts have in general terms declared that suitors attending court in a jurisdiction other than that of their residence are entitled to this privilege, and make no distinction between parties plaintiff and defendant. This is not a universal rule, however; for in a number of cases the rule is denied where the person claiming the exemption is plaintiff in a suit within the jurisdiction of the state in which the exemption is claimed. Bishop v. Vose, 27 Conn. 1; Mullen v. Sanborn, 79 Md. 364, 29 A. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421; Capwell v. Sipe, 17 R.I. 475, 23 A. 14, 33 Am. St. Rep. 890; Baldwin v. Emerson, 16 R.I. 304, 15 A. 83, 27 Am. St. Rep. 741; Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29, 35 Am. St. Rep. 726; Guynn v. McDaneld, 4 Idaho 605, 43 P. 74, 95 Am. St. Rep. 158; Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313; Nichols v. Horton (C. C.) 14 F. 327; Iron Dyke Copper Min. Co. v. Iron Dyke R. Co. (C. C.) 132 F. 208.

¶5 The exemption was sustained in case of a nonresident plaintiff in Roberts v. Thompson, 149 A.D. 437, 134 N.Y.S. 363, but the court stated they were not prepared to say the courts of New York would not take jurisdiction of a nonresident plaintiff if it should appear necessary for the full protection of citizens of that state against whom the nonresident plaintiff had brought his action.

¶6 One of ...