Mulhearn v. Press Pub. Co.

• Decision Date: 27 December 1890
• Citation: 53 N.J.l. 153,21 A. 186
• Parties: MULHEARN v. PRESS PUB. CO.
• Court: New Jersey Supreme Court

21 A. 186

53 N.J.l. 153

MULHEARN

v. PRESS PUB. CO.

Supreme Court of New Jersey.

Dec. 27, 1890.

(Syllabus by the Court.)

The parties to this action are the same as in the preceding one. 20 Atl. Rep. 760. After the rule to show cause why the service of the summons in the former action should not be set aside was granted, testimony was taken by the defendants to be used upon the argument of that rule. The testimony was taken before a supreme court commissioner in Jersey City. One of the witnesses who there appeared before the commissioner and gave his testimony was William L. Davis, who resided in the city of New York, ami who was vice-president of the defending corporation. While thus in attendance in this state as a witness, he was served by the sheriff of Hudson county with the summons in this case. This motion is to set aside this service.

Argued June term, 1890, before Garrison and Reed, JJ.

C. H. Beasley, for the motion.

J. A Beecher, contra.

REED, J. The rule in this state is that a person who attends a trial voluntarily or under process as a witness, or as a party, is privileged from arrest on civil process, and from the service of a summons. Halsey v. Stewart, 4 N. J. Law, 367; Dungan v. Miller, 37 N. J. Law, 182; Massey v. Colville, 45 N. J. Law, 119. The only grounds suggested for withdrawing the present service from the dominion of this rule are—First, that the testimony was not taken in a trial, but upon a side motion in the cause; and, second, that the service was not upon the witness in his individual character, but as the representative of a corporation. The reason which underlies the privilege of witnesses is that no one may be deterred from attending the place of trial and delivering his testimony by reason of a liability to be used in a foreign or distant jurisdiction. The reason for immunity from service is that parties may not lose the testimony of witnesses who might be deterred from attending the place of trial on account of the hazard of such a service and its consequences. The immunity extends to every person who in good faith attends as a witness any place where testimony is to be taken according to the practice of the courts to be used in establishing the rights of a party in any judicial proceeding. In Dungan v. Miller, supra, the party appeared to give testimony before a master in chancery. In Spence v. Stuart, 3 East, 89, the witness was voluntarily attending an arbitration. So it applies to a party attending at judges' chambers, or before a master or an examiner of the high, court, or at the registrar's office on passing the minutes of a decree, or before the under-sheriff on the execution of a writ of inquiry,...