Netograph Mfg. Co. v. Scrugham

• Decision Date: 28 January 1910
• Citation: 90 N.E. 962,197 N.Y. 377
• Parties: NETOGRAPH MFG. CO. v. SCRUGHAM.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 377

90 N.E. 962

NETOGRAPH MFG. CO.

v.SCRUGHAM.

Court of Appeals of New York.

Jan. 28, 1910.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Netograph Manufacturing Company against George R. Scrugham. From an order of the Appellate Division (133 App. Div. 750,118 N. Y. Supp. 212) reversing as order of the Special Term, setting aside service of a summons and complaint, defendant appeals, and the Appellate Division certifies a question to the Court of Appeals. Order affirmed, and question answered in the affirmative.

See, also, 118 N. Y. Supp. 1127.

Louis Marshall, for appellant.

Walter Jeffreys Carlin, for respondent.

WERNER, J.

The defendant, a resident of the state of Ohio, came into this state voluntarily in April, 1907. While here he attended a legislative hearing in the city of Albany. At that time he was arrested on a warrant, issued by a magistrate in the city of New York, charging him with the crime of conspiracy. He was taken to the city of New York, where he gave bail for his appearance pending the examination. The examination resulted in his being held, and he subsequently gave bail to appear and answer the charge in whatever court it might be prosecuted. In June, 1907, an indictmentwas found against him for conspiracy, and again he gave bail for his appearance at the trial. He returned to Ohio, and when the indictment was brought on for trial in the Court of General Sessions in the city of New York in March, 1909, he appeared and submitted himself to the jurisdiction of the court. His only purpose in coming into this state was to attend his trial upon the charge of conspiracy. A number of days were occupied in the trial, which resulted in the defendant's acquittal late in the afternoon of March 26, 1909. He remained in the city of New York until the following day, partly because he could not get a sleepting car berth on any train leaving the city on the night of his acquittal, and partly for the purpose of consulting his counsel about other indictments against him which had not yet been moved for trial. At about 9 o'clock in the morning of the day after the defendant's acquittal he was served at his hotel with the summons and complaint in this action. There is no connection between the criminal charge upon which the defendant was tried and acquitted and this civil suit for goods sold and delivered, which, for aught that appears, is brought in good faith. The learned court at Special Term held, and we shall assume, that defendant's stay in New York after his acquittal was for a proper purpose, and not unreasonable in duration. These are the circumstances which give rise to this controversy in which the learned Appellate Division has certified to us the question: ‘Is the service of the summons and complant upon the defendant * * * George R. Scrugham lawful?’ 133 App. Div. 750,118 N. Y. Supp. 212.

This question, based upon the undisputed facts of this record, is very narrow, but it relates to a subject which has for centuries engaged the attention of common-law courts under every conceivable variety of circumstances. Volumes of opinions have been written in which one can find all sorts of conflicting decisions and almost any dictum that one may be looking for. The ease with which the writer of an opinion upon even the simplest phase of this subject could drift into a general dissertation upon it is nicely illustrated in the voluminous note to Mullen v. Sanborn (a Maryland case reported in 25 L. R. A. 721), where the industrious author has gathered the cases from almost every state in the Union and from England. For present purposes it is enough to say that from the earliest times it has been the policy of the common law that witnesses should be produced for oral examination, and that parties should have full opportunity to be present and heard when their cases are tried. It is in furtherance of that policy and the due administration of justice that suitors and witnesses from abroad are privileged from liability to other criminal and civil prosecution, eundo, morando, et redeundo. Year Book, 13 Henry IV, I. B. Viner's Abr. ‘Privilege.’ It is not a natural right, but a privilege which has its origin in the necessity for protecting courts from interruption and delay, and witnesses or parties from the temptation to disobey the process of the courts. ‘It has always been held to extend to every proceeding of a judicial nature taken in or emanating from a duly constituted tribunal which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration of justice.’ Parker v. Marco, 136 N. Y. 588, 589,32 N. E. 989,20 L. R. A. 45, 32 Am. St. Rep. 770, citing Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35;Matthews v. Tufts, 87 N. Y. 568. It is not only not a natural right, but it is in derogation of the common natural right which every creditor has to collect his debt by subjecting his debtor to due process of law in any jurisdiction where he may find him. The privilege should therefore not be extended beyond the reason of the rule upon which it is founded. Since the obvious reason of the rule is to encourage voluntary attendance upon courts and to expedite the administration of...