Rains v. Smith

• Decision Date: 13 November 1913
• Citation: 160 S.W. 493,155 Ky. 766
• Parties: RAINS v. SMITH et al.
• Court: Kentucky Court of Appeals

160 S.W. 493

155 Ky. 766

RAINS v. SMITH et al.

Court of Appeals of Kentucky.

November 13, 1913

Appeal from Circuit Court, Whitley County.

Action by Fred Rains against R. A. Smith and others. Judgment for defendants, and plaintiff appeals. Affirmed.

H. C Gillis, and B. B. Snyder, both of Williamsburg, for appellant.

Tye &amp Siler, of Williamsburg, for appellees.

CARROLL J.

The appellant, Rains, brought this suit against the appellees Smith, Dickson, and Demarcus, to recover damages for an alleged wrongful arrest. The petition charges in substance that the defendant appellees, who were all residents of the state of Tennessee, and who had no authority to make an arrest in this state, wrongfully and forcibly took possession of the person of the plaintiff, the appellant Rains, on July 18, 1912, in Whitley county, and conveyed him to the jail of the county, where they caused him to be confined. The petition was filed on July 22d, and on the same day summons issued thereon and was executed on the defendants in Whitley county. When the case came on for trial in the Whitley circuit court, the defendants, without entering their appearance, moved to quash the service of summons on each of them "because each of them was then a citizen and resident of the state of Tennessee and had in good faith come into the state of Kentucky for the sole purpose of testifying and giving evidence in a case then pending before Hon. J. C Lovett, as presiding judge of the county court in and for Whitley county, Ky." In support of this motion each of them filed his separate affidavit stating: That Rains had been indicted for a felony in Anderson county, Tenn., and was at the time of his alleged arrest in Whitley county, and at the time the petition was filed, and summons executed upon the defendants in Whitley county, a fugitive from justice. That a warrant for his arrest had been issued by the county judge of Whitley county, and under this warrant he was arrested and his case set for hearing before the county judge on July 22, 1912. That the defendants and each of them on that day, acting in good faith, came from the state of Tennessee into the state of Kentucky "for the sole purpose of giving evidence in said case, and for no other purpose, at the time the summons herein was served on him in Whitley county, Ky. by the sheriff, to wit, on the 22d day of July, 1912. That the process was so served on this affiant within less than one hour after he testified in such case and before he had any opportunity whatever to return by the first train to the county of his residence in the state of Tennessee." The facts stated in the affidavit being confessed as true, the court dismissed without prejudice the petition, and from that ruling this appeal is prosecuted.

Counsel for appellant contend that the question in this case is controlled by section 542 of the Civil Code of Practice reading: "A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county while going, returning or attending, in obedience to a subp na." It is insisted that ...