Reiff v. Tressler

• Decision Date: 06 January 1912
• Docket Number: 17,376
• Parties: EMMA A. REIFF, Appellee, v. SUSIE TRESSLER et al., Appellants
• Court: Kansas Supreme Court

120 P. 360

86 Kan. 273

EMMA A. REIFF, Appellee, v. SUSIE TRESSLER et al., Appellants

No. 17,376

Supreme Court of Kansas

January 6, 1912

Decided January, 1912.

Appeal from Johnson district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROCESS--Summons on Witness--Nonresident of County--Venue. One who is in good faith attending court as a witness in a county other than that of his residence is exempt from service of summons in an action brought in that county, but if he is not a party to the litigation and is not attending as a bona fide witness he may be legally served with summons; and, in this case, where there is conflicting testimony as to whether he is attending court as a witness in good faith, the finding of the trial court that he did not attend in that capacity is binding on him.

2. TORT--Joint Liability--Summons--Venue. Where an action is brought against several defendants alleging that they are jointly liable for causing the illegal arrest and imprisonment of the plaintiff and summons is served on one defendant in the county where the action is brought, a summons may be issued under section 61 of the civil code to any other county against codefendants residing there.

McCabe Moore, John L. Little, and J. N. Baird, for the appellants.

C. C Hoge, and J. W. Parker, for the appellee.

OPINION

JOHNSTON, C. J.:

On July 23, 1909, Susie Tressler, one of the appellants herein, began an action in which she caused the arrest of Emma Reiff, the appellee herein, on a charge of obtaining money under false pretenses. Upon a hearing of the complaint the action was dismissed, whereupon Emma Reiff instituted the present action for damages on account of the arrest and false charge. The appellants reside in Wyandotte county while the action by Emma Reiff was commenced in Johnson county. Summons was obtained on Samuel Tressler while he was in Johnson county attending a justice of the peace court wherein an action against his wife, to recover damages on a replevin bond, was set for hearing. Another summons was issued and served on Susie Tressler in Wyandotte county. A special appearance was made by appellants and a motion filed to set aside the summons as to Samuel Tressler on the ground that he was attending court in Johnson county as a witness in behalf of his wife and was not subject to service and, because this service was illegal, there was necessarily a lack of jurisdiction of the court over Susie Tressler. On the hearing of the motion the court found that Tressler did not go into Johnson county as a witness or as a party to the suit pending in the justice court against his wife, and therefore refused to set aside the summons. The appellants afterward filed a motion to make the petition more definite and certain, which motion was overruled, and, at the same time, they filed a general denial of the allegations in the petition. They made no further appearance in the case and were not represented at the trial. A judgment was rendered against them for the sum of $ 2700. The case is brought here for a review of the ruling on the motion to set aside the service of summons.

It is the common-law rule, and one held to be in force in this state, that when a party is in good faith attending court, either as a litigant or witness, in a county other than that of his residence, he is privileged from arrest or the service of a summons in an action brought in that county. (Bolz v. Crone, 64 Kan. 570, 67 P. 1108, and cases cited.) The rule was again applied where witnesses went to a distant county to attend the federal court and were there served with summons. Although they had not been served with subpoenas they were held to be exempt from process. Many authorities were cited giving the reason of the rule and instances of its application. (Underwood v. Fosha, 73 Kan. 408, 85 P. 564.) It was also declared that:

"The great weight of authority is to the effect that in the absence of an express statute controlling the matter the same protection is to be extended to one who comes voluntarily to give his testimony as to a witness brought in by process." (p. 411.)

It was held that under our statutes, as they then existed, a material witness who comes into another county without a subpoena is exempt from the service of a summons.

This view of the law is, in effect, conceded by the parties, but it is insisted, and the trial court held, that Tressler did not attend the court in Johnson county as a witness in good faith. He was not a party to the action, and there is considerable testimony tending to show that Tressler was not a material witness in that case, did not attend court for that purpose, and that it was not contemplated by any one that he would be used in that capacity. He accompanied the attorney who represented his wife, and he, it appears expected to procure a continuance of the case in the...