Murray v. Wilcox

• Decision Date: 16 January 1904
• Citation: 97 N.W. 1087,122 Iowa 188
• Parties: PAULINE S. MURRAY v. J. T. WILCOX, Appellant
• Court: Iowa Supreme Court

97 N.W. 1087

122 Iowa 188

PAULINE S. MURRAY v. J. T. WILCOX, Appellant

Supreme Court of Iowa, Des Moines

January 16, 1904

Appeal from Story District Court.--HON. W. S. KENYON, AND HON. J. H RICHARD, Judges.

ON January 1, 1902, the plaintiff filed her petition alleging that defendant had promised to marry her, and because of his failure to comply she had been greatly damaged. The original notice was duly served in Story county, and on the 14th day of the same month the defendant filed a motion to set aside the service, and that he be discharged on three grounds: (1) That the court had no jurisdiction of his person; (2) that the service of the notice conferred no such jurisdiction; and (3) that defendant, when served with the original notice, was exempt from service of civil process or notice in Iowa and especially in Story county. This motion was supported by an affidavit of defendant to the effect that since September 1 1901, he had been a bona fide resident of Nebraska, with home at Wood River, in that state; that at the August, 1901, term of the district court of Story county, two indictments for felonies had been returned by the grand jury against him, on which a requisition had issued by the Governor of this state that by virtue thereof he was arrested in Nebraska, and brought to Story county, where he gave bail for his appearance, and then returned to his home; that at the October, 1901, term of court in said county said indictments were set for trial; that for the sole and only purpose of attending as a party and as a witness in his own behalf he returned from his home in Nebraska to Story county on the 23d of October 1901, and on that day was put on trial for the offense charged in one of the indictments and acquitted; that thereupon the other indictment was dismissed; that he intended and did return to his home at Wood River, Neb., on the first railroad train leaving in that direction after these proceedings, but before he could do so the original notice herein was served upon him. This motion was overruled Judge Kenyon then presiding, and at a subsequent term of court default and judgment were entered, Judge Richard presiding. The defendant appeals.

Reversed.

No appearance for appellee.

Tom H. Milner for appellant.

OPINION

LADD, J.

The immunity from service of civil process of a witness while attending a trial in a state other than that of his residence to give evidence seems to be universally recognized. The privilege protects him in coming, in staying, and in returning, if he acts in good faith, and without unreasonable delay. Sherman v. Gundlach, 37 Minn. 118 (33 N.W. 549); Mitchell v. Wixon, 53 Mich. 541 (19 N.W. 176); Thompson's Case, 122 Mass. 428 (23 Am. Rep. 370); Person v. Grier, 66 N.Y. 124 (23 Am. Rep. 35). See note to Mullen v. Sanborn, 79 Md. 364 (25 L.R.A. 721, 29 A. 522). As to whether a party is entitled to a like exemption there is some conflict in the authorities. In Bishop v. Vose, 27 Conn. 1, the defendant, a resident of another state, had come to Connecticut to attend the trial of a case which he had caused to be brought, and he was held not exempt from the service of summons; but in Machine Co. v. Wilson (C. C.) 22 F. 803; Machine Co. v. Wilson, 51 Conn. 595--it was decided otherwise as to a nonresident defendant whose attendance was necessary both as a witness and to instruct his counsel, the reason for the distinction being that a plaintiff having sought the aid of the courts of another state ought not to shrink from being subjected to their control, while the attendance of the defendant may be said to be compulsory. In Baldwin v. Emerson, 16 R.I. 304 (15 A. 83, 27 Am. St. Rep. 741), however, this distinction was disregarded, and the reason for exempting either a plaintiff or a defendant in a civil action, because of being a nonresident, from service of summons, was declared "fanciful, rather than substantial." See, also, Ellis v. DeGarmo, 17 R.I. 715 (24 A. 579, 19 L.R.A. 561). But a different view has been taken by the great weight of authority, declaring both party and witness alike entitled to the privilege. First National Bank v. Ames, 38 Minn. 179 (39 N.W. 308); Shaver v. Letherby, 73 Mich. 500 (41 N.W. 677); Fisk v. Westover, 4 S.D. 233 (55 N.W. 961, 46 Am. St. Rep. 780); In re Healey, 53 Vt. 694 (38 Am. Rep. 713); Andrews v. Lembeck, 46 Ohio St. 38 (18 N.E. 483, 15 Am. St. Rep. 547); Matthews v. Tufts, 87 N.Y. 568; Wilson v. Donaldson 117 Ind. 356 (20 N.E. 250, 3 L.R.A. 266, 10 Am. St. Rep. 48); Halsey v. Stewart, 4 N.J.L. 366.

As a party may testify in his own behalf in this state, there is no room for the distinction made between parties and witnesses, save possibly as suggested in the Connecticut cases. The reasons for exemption from service of process have been so often stated that repetition seems superfluous. They relate to the free and unhampered administration of justice in our courts, and are as applicable to service of summons or original notice as the beginning of an action by arrest on civil process under the old commonlaw practice. Said Elliott J., in Wilson v. Donaldson, supra, concerning the exemption: "It is his privilege, under our laws, to testify in his own behalf; and this privilege should not be burdened with the hazard of defending other actions in our forums. Our own citizens will often derive a substantial benefit from the personal appearance of a nonresident defendant, since it may enable them to obtain a personal judgment which else were impossible. 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 against him. While coming and departing, as well as while actually in necessary attendance at court, he should be free from the hazard of being compelled to answer in other actions. It is an evidence of respect for our laws and confidence in our courts that he comes here to litigate, and the laws he respects should give him protection. If he can come only under the penalty of yielding to our jurisdiction...