Long v. Hawken

• Decision Date: 10 January 1911
• Parties: LONG v. HAWKEN.
• Court: Maryland Court of Appeals

79 A. 190

114 Md. 234

LONG v. HAWKEN.

Court of Appeals of Maryland

January 10, 1911

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Action by Albert J. Long, executor of Catherine A. Shupp, deceased against Sallie L. Hawken. From an order quashing the summons and the return of the officer thereon, plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, and PATTISON, JJ.

Albert J. Long, pro se.

Alexander Armstrong, Jr., and John Ridout, for appellee.

BRISCOE J.

The question presented on this appeal is a narrow one, and concisely stated, is this: Is a nonresident party defendant who comes into this state for the purpose of defending a suit pending against him exempt from service of civil process for the commencement of civil action against him in this state? In other words, whether a civil summons can be served upon a defendant a nonresident of the state for another (new) action while he is attending on court in this state as a party defendant in an action pending against him. It seems to be clear that, whatever may be the rule in other jurisdictions it is settled in this state that a nonresident witness is exempt from service of civil process as well as arrest while attending on the courts of the state. In the early case of Brookes v. Chesley, 4 Har. & McH. 295 (1799), it was held in keeping with the common-law rule "that jurymen and witnesses, during their attendance on court, are privileged from arrest." 3 Blackstone, Commentaries, 289; 1 Greenleaf, Evidence, §§ 316-320. In Bolgiano v. Gilbert Lock Co., 73 Md. 132, 20 A. 788, 25 Am. St. Rep. 582, it is said: "A witness is protected from arrest on any civil process while going to the place of trial, while attending there for the purpose of the cause, and while returning home. 'Eundo, morando, et redeundo.' And it matters not whether he attends voluntarily or by compulsion. And this is the rule, whether the privilege be regarded as a personal one to the witness or the privilege of the court. 2 Taylor's Evidence, § 1139; Greenleaf, Evidence, § 316; 1 Wharton's Evidence. § 389." And in Bolgiano's Case, supra, it was further said that a resident of another state, who comes into this state as a witness to give evidence in a case pending here, is exempt from service of process for another suit. Judge Miller, who prepared the opinion in that case, said the decided weight of authority has extended the privilege so far at least as to exempt a resident of another state, who comes into this state as a witness to give evidence in a cause here, from service of process for the commencement of a civil action against him in this state, and that the privilege protects him in staying and returning, provided he acts bona fide and without unreasonable delay. A large number of cases were cited in support of the doctrine here announced, but we find it unnecessary to cite them.

But it is insisted that a different rule applies to a nonresident party defendant; and inasmuch as the appellee in this case, a nonresident of the state, was present as a party defendant she was not exempt from service of the summons, which had been issued by a court in this state, and which was served on her while in the state. There is considerable conflict of authority in the cases upon the general question here involved, and the courts are far from being in accord or harmony in the decisions. In 32 Cyc. p. 492, the doctrine is thus stated: "Suitors and witnesses coming from foreign jurisdictions for the sole purpose of attending court, whether under summons or subp na or not, are usually held immune from service of civil process while engaged in such attendance and for a reasonable time in coming and going." The rule is by most courts held to apply equally well to suitors and witnesses attending court in the states. In the case of Bolgiano v. Gilbert Lock Co., supra, this court, in referring to this privilege or immunity, said: "But does it protect a witness or a party from service of a summons in order to secure his appearance to an ordinary civil suit? On this question there has been some conflict of decision. The tendency, however, of the courts in this country is to enlarge the privilege and to afford full protection to suitors and witnesses from all forms of process of a civil nature during their attendance before any judicial tribunal and for a reasonable time in going and returning." The reason for the exemption is placed by the New York Court of Appeals and by Judge Cooley in the Michigan case on the ground of public policy and the due administration of justice. The general rule as announced by this court in Bolgiano Case that a nonresident party defendant was also exempt from the service of process has been approved by a long line of well-considered cases in other jurisdictions, and is supported by the great weight of authority in the states and federal courts. In Matthews v. Tufts, 87 N.Y. 568, the court said: "In Van Lieuw v. Johnson, decided March, 1871 [not reported], and referred to in Person v. Grier, 66 N.Y. 124 , a majority of the court were of opinion that a summons could not be served upon the defendant, a nonresident of the state while attending a court in this State as a party. This immunity does not depend upon statutory provisions, but is deemed necessary for the due administration of justice. It is not confined to witnesses, but extends to parties as well, and is abundantly sustained by authority." In Mitchell v. Huron, 53 Mich. 541, 19 N.W. 176, Judge Cooley put the exemption of a nonresident party defendant upon the ground of public policy, the due administration of justice, and protection to parties and witnesses alike demand it. In Person v. Grier, 66 N.Y. 124, it was said, in approving the doctrine that a party was exempt, that "this immunity is one of the necessities of the administration of justice." The following cases hold that a nonresident party defendant is exempt from the service of process: Miller v. Dungan, 37 N. J. Law, 182; Massey v. Colville, 45 N. J. Law, 119, 46 Am. Rep. 754; Miles v. McCullough, 1 Bin. (Pa.) 77; Wilson v. Donaldson, 117 Ind. 356, 20 N.E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48; Mitchell v. Huron, 53 Mich. 541, 19 N.W. 176; First Nat. Bank of St. Paul v. Ames, 39 Minn. 179, 39 N.W. 308; Palmer v. Rowan, 21 Neb. 452, 32 N.W. 210, 59 Am. Rep. 844; Huddeson v. Prizer, 9 Phila. (Pa.) 188; Bolz v. Crone, 64 Kan. 571, 67 P. 1108; Halsey v. Stewart, 4 N. J. Law, 324; Andrews v. Lembeck, 46 Ohio St. 40, 18 N.E. 483, 15 Am. St. Rep. 547; Hayes v. Shields, 2 Yeates (Pa.) 222; In re Healey, 53 Vt. 694, 38 Am. Rep. 713; Gregg v. Sumner, 21 Ill. 110; Martin v. Bacon, 76 Ark. 160, 88 S.W. 863, 113 Am. St. Rep. 81; Rorer, Interstate Law, p. 26; Cooper v. Wyman, 122 N.C. 785, 29 S.E. 947, 65 Am. St. Rep. 731; Murray v. Wilcox, 122 Iowa, 189, 97 N.W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263; Cameron v. Roberts, 87 Wis. 291, 58 N.W. 376, 41 Am. St. Rep. 43. The decisions of the federal courts are to the same effect: Skinner & Mounce Co. v. Waite (C. C.) 155 F. 828; Nichols v. Horton (C. C.) 14 F. 330; Juneau Bank v. McSpedan, 14 Fed. Cas. No. 7582; Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. 10,739; Lyell v. Goodwin, 4 McLean, 29 Fed. Cas. No. 8,616; Small v. Montgomery, 23 F. 707; Atchison v. Morris (C. C.) 11 F. 582. In Wilson Machine Co. v. Wilson (C. C.) 22 F. 803, it is said: "It is important to the administration of justice that each party to the suit should have a free and untrammeled opportunity to present his case, and that nonresident defendants should not be deterred by the fear of being harassed or burdened with new suits in a foreign state from presenting...