Peet v. Fowler

• Decision Date: 28 May 1909
• Docket Number: 574.
• Parties: PEET v. FOWLER.
• Court: U.S. District Court — Eastern District of Pennsylvania

170 F. 618

PEET v. FOWLER.

No. 574.

United States Circuit Court, E.D. Pennsylvania.

May 28, 1909

John McClintock, Jr., for plaintiff.

Charles Biddle, for defendant.

HOLLAND District Judge.

It is a well-established principle of law that parties to a suit, for the sake of public justice, are privileged from the service of process upon them in coming to, attending upon, and returning from the court, or as it is usually termed, eundo morando, et redeundo. This is an immunity of all persons under certain circumstances, on the principle that, where the law requires any duty of the citizen, it will protect him in the discharge of that duty, and the privilege extends to the service of a summons as well as a capias. The cases in point are collected in Troubat & Haley's Practice, Sec. 236.

Mr Schofield, receiver of the First National Bank of Manasquan had instituted a suit against the plaintiff in this court to recover on two notes.

The case was called for trial on Monday, April 19, 1909, and the defendant, who is the successor in the receivership of Mr Schofield, appeared here for the purpose of being substituted on the record as the plaintiff, and, in addition, he had been subpoenaed by the defendant in the other suit, who is the plaintiff here, to appear to testify in that suit. Upon his arrival here on April 19th, before he had been substituted, he was served with a summons in this suit. He was met in the corridor of the buildings in which the United States courts are held, and, upon request, walked into the marshal's office, where a summons was served upon him; at the same time a statement was made by the officer that a summons could not be served in or about the courts, but that it could be served in the marshal's office. Mr. Fowler refused, upon request, to accept service, for the reason, as he stated, that he did not think suit could be instituted against a receiver without permission of the court appointing him. At the conclusion of the trial, on the following day, a summons was again served in this suit upon the defendant as he was leaving his hotel for the train upon which he expected to go to his home, and a motion was immediately filed to set aside the service of the summons, upon the ground that his presence here was required in the conduct of the litigation in which he was plaintiff, and in answer to a subpoena served upon him by the defendants in that suit.

The evidence fails to...