Mitchell v. Wixon
| Decision Date | 30 April 1884 |
| Citation | 53 Mich. 541,19 N.W. 176 |
| Court | Michigan Supreme Court |
| Parties | MITCHELL v. WIXON. |
Service of process upon a party or witness, while necessarily in attendance upon a trial outside of the jurisdiction of his residence, will be set aside.
The relator resides at Bay City, in the county of Bay. He was a party to two suits pending in the county of Huron, and went to Bad Ax to attend on the trial thereof. He was examined as a witness in one of the causes, and the other was continued. He makes oath that he was a necessary witness in the two cases, and attended the court for the sole purpose of giving his evidence. While so in attendance he was served with a summons in another case. He applied to the court, on a showing of the facts, to set aside the service, but the application was refused. He now moves in this court for a writ of mandamus.
We think the case is within the principle of Watson v. Judge of Superior Court, 40 Mich. 729, and that the writ should issue. Public policy, the due administration of justice, and protection to parties and witnesses alike demand it. There would be no question about it if the suit had been commenced by arrest; but the reasons for exemption are applicable, though with somewhat less force in other cases also. The following cases may be referred to for the general reasons: Norris v. Beach, 2 Johns. 294; Sanford v. Close, 3 Cow. 381; Dixon v. Ely, 4 Ed.Ch. 557; Clark v. Grant, 2 Wend. 257; Seaver v. Robinson, 3 Duer, 622; Person v. Pardee, 66 N.Y. 124; Matthews v. Tufts, 87 N.Y. 568; Hall's Case, 1 Tyler, 274; In re Healey, 53 Vt. 694; Miles v. McCullough, 1 Bin. 77; Halsey v. Stewart, 4 N.J.Law, 366; Dungan v. Miller, 37 N.J. 182; Vincent v. Watson, 1 Rich.Law, 194; Sadler v. Ray, 5 Rich.Law, 523; Martin v. Ramsey, 7 Humph. 260; Dickenson's Case, 3 Harr. (Del.) 517; Henegar v. Spangler, 29 Ga. 217; May v. Shumway, 16 Gray, 86; Thompson's Case, 122 Mass. 428; Ballinger v. Elliot, 72 N.C. 596; Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Arding v. Flower, 8 Term.R. 534; Newton v. Askew, 6 Hare, 319; Persse v. Persse, 5 H.L.Cas. 671. See, also, In re Cannon, 47 Mich. 481; S.C. 11 N.W. 280.
The case of Case v. Rorabacher, 15 Mich. 537, is different. In that case the party claiming the privilege was attending court within the jurisdiction of his residence.
The writ must issue, but as no intentional wrong is charged or appears, it will be without costs.
(The other justices concurred.)
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