Northwestern Casualty & Surety Co. v. Conaway

• Decision Date: 14 April 1930
• Docket Number: 40103
• Citation: 230 N.W. 548,210 Iowa 126
• Parties: NORTHWESTERN CASUALTY & SURETY COMPANY, Appellee, v. AARON C. CONAWAY, Appellant
• Court: Iowa Supreme Court

230 N.W. 548

210 Iowa 126

NORTHWESTERN CASUALTY & SURETY COMPANY, Appellee, v. AARON C. CONAWAY, Appellant

No. 40103

Supreme Court of Iowa, Des Moines

April 14, 1930

Appeal from Marshall District Court.--CLARENCE NICHOLS, Judge.

Action at law upon a judgment rendered against the defendant in Ramsey County, Minnesota. A jury was waived, and the cause tried to the court. Judgment for plaintiff, and the defendant appeals.

Affirmed.

C. H E. Boardman and H. G. Cartwright, for appellant.

E. N Farber and O'Brien, Horn & Stringer, for appellee.

STEVENS J. MORLING, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ., concur.

OPINION

STEVENS, J.

I. The appellant was formerly a colonel in the United States army, commanding the Three Hundred Forty-seventh Medical Regiment, allocated to the state of Iowa, of which he was and is a resident. Immediately prior to July 3, 1927, he was on the reserve list, without salary, but subject to call by the government. On or about that date, appellant was ordered by the military department of the United States to take his troops to Fort Snelling, Minnesota, for a training period of 15 days. While at Fort Snelling, in charge of his troops, and in the government service; as already stated, he was served with summons notifying him of the commencement of an action by the Northwestern Casualty & Surety Company against him in the district court of Ramsey County, Minnesota. In due time, appellant appeared in the Minnesota court, and filed a motion, supported by an affidavit, reciting the facts above stated, to quash the summons, upon the grounds that, at the time of the service thereof, he was on the military reservation of the United States, and not within the jurisdiction of the courts of Minnesota, and that his presence within the state was involuntary, and solely as an officer in the United States army, and in obedience to the command of his superior, and that, while in such capacity, he was privileged from the service of process in the state of Minnesota. The motion to quash the summons was overruled by the court, and judgment entered against him, as demanded. No appeal was taken from such judgment, nor was the ruling of the court upon the motion to quash the summons assailed in any way.

There is no controverted question of fact involved on this appeal. The sole question is: Did the Minnesota court acquire jurisdiction to enter a personal judgment in that state against appellant? The rule that nonresident suitors and witnesses in attendance upon a trial in a foreign jurisdiction are, for a reasonable time, immune from the service of process upon them therein is of general application. Murray v. Wilcox, 122 Iowa 188, 97 N.W. 1087; Stewart v. Ramsay, 242 U.S. 128 (61 L.Ed. 192, 37 S.Ct. 44); Phipps v. Cleveland Ref. Co., 261 U.S. 449 (67 L.Ed. 739, 43 S.Ct. 418); State ex rel. Brainard v. District Court, 34 Wyo. 288 (243 P. 123); Kelly v. Pennington, 78 Colo. 482 (242 P. 681); Prescott v. Prescott, 95 N.J.Eq. 173 (122 A. 611); Filer v. McCornick, 260 F. 309; Hammons v. Superior Court, 63 Cal.App. 700 (219 P. 1037); Bolz v. Crone, 64 Kan. 570 (67 P. 1108); Kaufman v. Garner, 173 F. 550.

This rule, as stated in a number of the cases cited above, is, in reality, founded on the necessities of judicial administration, which, as said in Stewart v. Ramsay, supra, "'* * * would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. Witnesses would be chary of coming within our jurisdiction, and would be exposed to dangerous influences, if they might be punished with a lawsuit for displeasing parties by their testimony; and even parties in interest, whether on the record or not, might be deterred from the rightfully fearless assertion of a claim or the rightfully fearless assertion of a defense, if they were liable to be visited on the instant with writs from the defeated party.'"

Immunity from process in such cases may and will be waived if the party entitled thereto fails to appear and move to quash the summons, or to proceed otherwise, if required by the rules of practice in such jurisdiction. Murray v. Wilcox, supra; Peters v. League, 13 Md. 58 (71 Am. Dec. 622); Prentis v. Commonwealth, 26 Va. 697, 5 Rand. 697 (16 Am. Dec. 782); Geyer's Lessee v. Irwin, 4 U.S. 107, 4 Dall. * 107 (1 L.Ed. 762); 1 Freeman on Judgments (5th Ed.), Section 401. Judgments erroneously entered in such cases are not void, but voidable. 1 Freeman on Judgments (5th Ed. ), Section 401; Thornton v. American Writing Mach. Co., 83 Ga. 288 (9 S.E. 679); Nelson v. Brigham, 173 Minn. 552 (218 N.W. 101); Longueville v. May, 115 Iowa 709, 87 N.W. 432. Immunity from process, when accorded to persons engaged in the military service, is based upon grounds of public policy. Dow v. Johnson, 100 U.S. 158 (25 L.Ed. 632); Land Title & Tr. Co. v. Rambo, 174 Pa. 566 (34 A. 207).

The question whether appellant was legally entitled to claim immunity from the service of process in the state of Minnesota while engaged temporarily in the military service, we need not determine. The decision of the Supreme Court of the United States in Dow v. Johnson, 100 U.S. 158 (25 L.Ed. 632), contains an interesting discussion of this question. Immunity in that case was sustained, and a judgment entered by the state court in the state of Louisiana upon summons served upon General Dow, while engaged as a general in the Union army, in active military service in the war between the states, was decreed void, because of the nature of the recovery sought and the military exigencies then prevalent.

The Minnesota court clearly had jurisdiction to pass upon the motion to quash the summons, and, in doing so, must necessarily determine whether appellant was, or was not immune from the service of process in that state. The filing of the motion to quash necessarily invoked the jurisdiction of the court for that purpose. That was the question first to be litigated in that court. Even if it be assumed that the decision on the motion to quash was erroneous, it cannot be said that it was rendered without jurisdiction. Whether the judgment might have been avoided by some appropriate proceedings in the state of Minnesota is not here material. If there was error in the ruling, it could and should have been corrected on appeal, or by other appropriate proceeding in the courts of the state where rendered. No case is cited, nor have we been able to find any, to the effect that...