Mullen v. Sanborn

• Decision Date: 20 June 1894
• Parties: MULLEN v. SANBORN ET AL.
• Court: Maryland Court of Appeals

29 A. 522

79 Md. 364

MULLEN v. SANBORN ET AL.

Court of Appeals of Maryland

June 20, 1894

Appeal from Baltimore city court.

Action by Joseph Mullen against Edward F. Sanborn and another for damages for maliciously issuing an attachment. On motion of defendants, the summons was quashed. Plaintiff appeals. Reversed.

Argued before ROBINSON, C.J., and BRYAN, McSHERRY, PAGE, BRISCOE BOYD, and FOWLER, JJ.

R. W Applegarth and H. C. Kennard, for appellant.

Bernard Carter and Hinkley & Morris, for appellees.

FOWLER J.

Edward F. Sanborn and Arthur C. Mann, trading as Sanborn & Mann residing and doing business in Massachusetts, issued out of the Baltimore city court an attachment on original process against Joseph Mullen, a citizen of this state and a resident of Baltimore city. This attachment was subsequently quashed and the shortnote case was prosecuted, but without success. Sanborn, one of the plaintiffs in the attachment suit, was advised by his counsel here that it would be necessary for him to testify as a witness at the trial of the shortnote case, and it is admitted he came here for that purpose. The case, however, was continued; and Sanborn, having left the court room in Baltimore, was about to depart from this state, for his home in Massachusetts, when he was summoned as a defendant in a cause brought by the appellant, Mullen, to recover damages for wrongfully, maliciously, and without probable cause, issuing the attachment above mentioned. Sanborn moved to quash the writ of summons and the return of the sheriff thereon, on the ground that, being a witness from another state, he was exempt from civil process while attending as a witness in the short-note case, and for a reasonable time thereafter. This motion was answered by Mullen, who insisted that it should be dismissed, but the court below, being of opinion that it was bound by the decision of this court in Bolgiano's Case, 73 Md. 132, 20 A. 788, passed an order quashing the writ of summons, as prayed by Sanborn. From this order Mullen has appealed.

The only question, therefore, presented here, is whether, under the circumstances of this case, the appellee Sanborn is exempt from the service of summons issued to bring him into court to respond in damages for the wrongful and malicious issuing of the attachment. We do not think this case is within the rule laid down by this court in Bolgiano's Case, supra. That was the case of a witness, who was not a party to the suit, who came here from New Jersey, where he resided, for the purpose of testifying in a cause on trial in this state, and we there expressed the view that the tendency of the courts in this country "is to enlarge the privilege and 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;" but, continuing, we said "We think 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 suit against him in this state, and that the privilege protects him in staying and returning, provided he acts bona fide, and without unreasonable delay." The language above quoted was, of course, used in reference to the facts of the case then before us, --that of a witness who was not a party to the cause. As we did not in the case just cited undertake to lay down any general rule as to the exemption of suitors from civil process, because that was a case involving only the rights of a witness, we do not think the case...