Paul v. Stuckey

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Paul v. Stuckey, 189 S.W. 676, 126 Ark. 389 (Ark. 1916)
• Decision Date: 20 November 1916
• Docket Number: 261
• Parties: PAUL, ADMINISTRATRIX, v. STUCKEY

189 S.W. 676

126 Ark. 389

PAUL, ADMINISTRATRIX, v. STUCKEY

No. 261

Supreme Court of Arkansas

November 20, 1916

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

Carmichael Brooks, Powers & Rector, for appellant.

1. There is no State statute exempting either local or nonresident attorneys from any legal process. Kirby's Digest, §§ 3129, 444; 61 Ark. 504; 54 Am. St. 276.

2. The common law does not allow counsel the privilege of immunity from service of civil process. Weeks on Attorneys, § 107, p. 203; 3 Blackst. Com., § 289.

3. The great weight of authority is against the immunity. 35 Ark 331; 12 L. R. A. (N. S.) 942, and note; 32 Id. 931; 198 U.S. 144; 134 Am. St. 886; 7 Words & Phrases, 6787; 89 M. W. 1124; 17 Tenn. (9 Yerg.) 7, 9; 18 Am. 660; 27 F. 342, 343; 76 Ark. 161; 1 Phil. 217; 18 Johns. 52; 12 F. 590; 11 L. R. A. 101; 67 Am. St. 458; 37 F. 342; 110 N.E. 601; 63 L. R. A. 503; 122 N.C. 963; 131 Id. 54.

4. Granting such a privilege would be contrary to reason and public policy. 133 N.C. 292; 45 S.E. 638; 63 L. R. A. 503.

Campbell & Suits, for appellee.

1. In view of the decisions of this court exempting parties from service of process, the rule exempting attorneys rests upon the bedrock of the Constitution and public policy. Art. 2, § 10, Const.; Kirby's Digest, §§ 2273, 444; 31 Ark. 266; 101 Id. 216; 3 Blackst. Com. 24, 26; 60 Ark. 207; 207 F. 890.

2. The privilege of attorneys is ascertained by the common law and the great weight of authority. 61 Ark. 504; 76 Id. 161; 7 F. 17; 15 Id. 1130; 54 Am. St. Powers' case; 207 F. 890; 4 Call. 97; 15 Johns. 242; 18 Id. 52; 15 Fed. Cas. 1126; 18 Id. 1138; 1 Phila. 217; 7 F. 17; 87 N.Y. 568; 74 F. 442; 67 Am. St. 458; 20 Ohio Ct. Ct. 1; 3 Boyce 1; 95 S.C. 49; 207 F. 890; 83 S.C. 225.

3. The privilege is not contrary to reason and public policy. 40 Ark. 263; 60 Id. 425 31 Id. 767.

WOOD, J. HUMPHREYS, J., not participating.

OPINION

WOOD, J.

The appellant filed her complaint against the appellee in the Pulaski Circuit Court, alleging that appellee was indebted to the estate of John P. Paul in the sum of $ 700, and asking that she, as his administratrix, have judgment for that amount. She had summons issued. Appellee is an attorney. He was engaged in defending one Atkinson, who was on trial charged with a felony in the Pulaski Circuit Court. Appellee, while thus engaged, was called to the door of the court room and the summons issued in the civil suit was served upon him. Appellee at that time resided in Jackson county. He moved to quash the service of summons. The court sustained the motion, dismissed appellant's complaint, and she appeals.

Was the service valid? The action instituted against the appellee belongs to that class that may be brought in any county in which the defendant is summoned. Section 6072, of Kirby's Digest. We have a statute expressly exempting witnesses from being sued in counties where they do not reside, while going, returning or attending in obedience to a subpoena. Kirby's Digest, section 3129. But there is no such statute concerning attorneys at law. They fall, so far as statutory enactment is concerned, within the general class against whom suits may be brought in any county in which the defendant is summoned. Kirby's Digest, section 6072, supra.

The appellee contends that attorneys, while attending court in their professional capacity in counties other than their residence, should be exempt from the service of summons in civil actions against them in those counties under the doctrine announced by this court in Powers v. Arkadelphia Lumber Co., 61 Ark. 504, 33 S.W. 842, and Martin v. Bacon, 76 Ark. 158, 88 S.W. 863, to the effect that suitors, while in attendance upon judicial proceedings in courts other than that of their residence, are privileged from the service of summons in other adverse proceedings instituted against them in those counties.

In Powers v. Arkadelphia Lumber Co., supra, we said: "One line of authorities rests the privilege solely on the familiar constitutional ground of freedom from arrest on civil process, but we prefer to rest it also on the ground of a sound public policy, so aptly expressed by the Supreme Court of Ohio in the case of Andrews v. Lembeck, 46 Ohio St. 38, 18 N.E. 483, thus: 'The question is one which profoundly concerns the free and unhampered administration of justice in the courts. That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which require their presence, without incurring the liability of being picked up and held to answer to some other adverse judicial proceeding against them, is so far a rule of public policy that it has received almost universal recognition wherever the common law is known and administered.'" And, again, quoting from Lamkin v. Starkey, 7 Hun 479, we said: "The court has power, independently of the statute, to protect its suitors, officers and witnesses."

In Martin v. Bacon, supra, we quoted the language of Judge Elliott in Wilson v. Donaldson, 117 Ind. 356, 20 N.E. 250, as follows: "High considerations of public policy require that the law should encourage him (the non-resident suitor) to freely enter our forums by granting immunity from process in other civil actions, and not discourage him by burdening him with the obligation to submit to the writs of our courts if he comes within our borders."

Public policy is defined as, "That principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good; the principles under which freedom of contract or private dealing is restricted by law for the good of the community, the public good. " 32 Cyc. 1251. In Woodruff v. Berry, 40 Ark. 251, this court approved Lord Brougham's definition of public policy as follows: "Public policy, in relation to this question, is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law, or public policy, in relation to the administration of the law." Says the Supreme Court of Rhode Island: "The reasons assigned for the exemption of non-resident suitors are, that courts of justice ought to be open and accessible to suitors; that they ought to be permitted to approach and attend the courts in the prosecution of their claims and the making of their defenses without molestation or hindrance; that they ought not to be distracted from prosecuting their just rights, or making their just defenses to suits by reason of their liability to suit in a foreign jurisdiction." Baldwin v. Emerson, 16 R.I. 304, 307, 15 A. 83.

It is shown by numerous authorities collated in the note to Mullen v. Sanborn et al., 25 L.R.A. 721, that the rule arose and exists as one of the necessities of judicial administration, because without it, it would be impossible for the courts to fully and freely administer justice. It is there succinctly stated that, "the rule exists in order that causes may be fully heard and justice administered in an orderly manner. The privilege is to subserve public interests."

Now the service of summons in a civil action upon an attorney while engaged in the trial of a cause pending in a county other than that in which he resides does not contravene any doctrine of public policy as above defined, and as announced in our decisions, supra. The service of summons is had by delivering to the defendant a copy thereof, or, if he refuses to receive it, by offering him a copy thereof. Section 6042, Kirby's Digest.

We cannot see that the mere service of summons upon an attorney while in attendance upon a court in his professional capacity would in any way infringe upon the dignity or invade the prerogatives of the court. It could not interrupt the orderly progress of trials nor tend in the least to hamper and embarrass the courts in the administration of justice. Therefore, as we view it, the public good would not be adversely affected by such procedure, and the rule of public policy applicable to suitors does not obtain.

In Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962, 134 Am. St. Rep. 886, it is held that (quoting syllabus): "The exemption of a suitor or witness from process is not a natural right, but a privilege having its origin in the necessity for protecting courts from interruption and delay and witnesses or parties from the temptation to disobey process." 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, and therefore the privilege should not be extended beyond the reason of the rule upon which it is founded."

Our statute giving a right of action "in any county in which the defendant is summoned" is but declarative of and in conformity with this natural right.

The appellee contends that the rule of public policy declared by this court in Powers v. Arkadelphia Lumber Co., and Martin v. Bacon, supra, exempting non-resident suitors from the operation of the statute should also be extended, by analogy, to attorneys at law while attending in their professional capacity upon judicial proceedings in counties other than that of their residence. This contention is unsound.

The reason upon which the rule is founded, as we have shown, is that it is to the public interest and for the public good that courts should be untrammeled in their efforts to administer justice between parties to causes pending before them. Parties litigant are entitled...