Martin v. Bacon

• Decision Date: 24 June 1905
• Citation: 88 S.W. 863,76 Ark. 158
• Parties: MARTIN v. BACON
• Court: Arkansas Supreme Court

88 S.W. 863

76 Ark. 158

MARTIN v. BACON

Supreme Court of Arkansas

June 24, 1905

Appeal from Garland Circuit Court, ALEXANDER M. DUFFIE, Judge.

Reversed in part.

Judgment affirmed and reversed.

Greaves & Martin, for appellant.

Wood & Henderson, for appellee.

OPINION

BATTLE, J.

James T. Grubb in his lifetime brought an action against C. H Bacon for damages caused by an assault and battery made upon him by the defendant. The action was commenced on the 16th of November, 1901. The plaintiff died and the action was renewed in the name of W. H. Martin, as special administrator.

The defendant moved the court to quash the summons setting out the grounds in his motion; and the plaintiff replied, stating facts. The court sustained the motion, and dismissed the action, and the plaintiff appealed.

The motion was heard and sustained upon the following agreed statement of facts:

"The alleged assault for which this action was brought was made on the 6th day of May, 1901, in the city of Hot Springs, Garland County, Arkansas. Upon said date the defendant was a visitor to the city of Hot Springs, and was not present in said city under compulsion of any judicial process, but was here voluntarily.

"Said defendant, C. H. Bacon, is, and was on the said 6th day of May, 1901, a resident of the State of Tennessee.

"That upon a preliminary examination being made and held, in which said alleged assault was investigated, the defendant was held to await the action of the grand jury of Garland County, and was permitted to, and did give bond in the sum of one thousand dollars for his appearance on the 1st day of October, 1901, term of the circuit court of Garland County, next ensuing.

"That afterwards, to wit, on the 19th day of October, 1901, said grand jury returned a bill of indictment charging the said Bacon with assault with intent to kill, committed upon the person of the said J. T. Grubb, and on the day of , 1901, an order was made by the circuit court of Garland County permitting the said Bacon to remain upon the bond already given by him until the further order of the court; and the case was set for trial on the 19th day of November, 1901, the same being also a day of said October term of said court.

"That the defendant left his home, in Tennessee, and came to the city of Hot Springs, arriving here on the 15th day of November, 1901--coming here for the purpose of being present at said trial, and of making his arrangements for said trial--and was served with summons herein on the 16th day of November, 1901, and came here in obedience to his said bail bond, requiring him to be present at said trial, and for the purpose of being tried under said indictment, and that said defendant was in this county for no other purpose than to be present and submit himself to the orders and judgment of this court in said cause."

It is well settled by the great weight of authority that a party cannot be lawfully served with civil process while he is in attendance on a court in a State other than that of his residence, either as a party or a witness, or while going to and returning therefrom. Murray v. Wilcox (Iowa), 122 Iowa 188, 97 N.W. 1087, 64 L. R. A. 534, 101 Am St. Rep. 263; Powers v. Arkadelphia Lumber Company, 42 Cent. Law J. 397, and note; note to Mullen v. Sanborn, 25 L.R.A. 721. In this State a party, in civil actions and criminal prosecutions, can testify as a witness, and may be exempt from service of civil process in both capacities. Judge Elliott, in Wilson v. Donaldson, 117 Ind. 356, 20 N.E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48, gives the reason for the exemption as follows: "If citizens of other States are allowed to come into our jurisdiction to attend court as parties or witnesses, and to freely depart from it, the administration of justice will be best promoted, since a defendant's personal presence is often essential to enable his counsel to justly conduct his defense. The principle of State comity, too, demands that a citizen of another State who submits to the jurisdiction of our courts, and here wages his forensic contest, should not be compelled to do so under the limitation and obligation of submitting to the jurisdiction of our courts in every case that may be brought...