Ryan v. Ebecke

• Decision Date: 23 February 1925
• Citation: 128 A. 14,102 Conn. 12
• Court: Connecticut Supreme Court
• Parties: RYAN v. EBECKE ET AL.

128 A. 14

102 Conn. 12

RYAN v. EBECKE ET AL.

Supreme Court of Errors of Connecticut.

February 23, 1925

Appeal from Superior Court, Hartford County; Isaac Wolfe and Newell Jennings, Judges.

Action by Mary Ryan against Philip Ebecke and George J. Hausaman. From judgment for defendant Hausaman on sustaining of his plea to jurisdiction, plaintiff appeals. Error, judgment set aside, and cause remanded.

Arthur T. Keefe, of New London, for appellant.

Ralph O. Wells, of Hartford, for appellee Hausaman.

KEELER, J.

The defendant Hausaman, a resident of New Jersey, was arrested for violation of the motor vehicle law and arraigned before a justice of the peace in East Windsor, when he gave bail for his appearance and returned to New Jersey, and on July 26 1924, came to Connecticut solely for the purpose of making his defense to the charge. While so attending court as an accused party defendant, he was served with process in the present action by delivery to him of a true and attested copy of the writ and complaint therein. He pleaded to the jurisdiction, claiming to be exempt from the service of civil process. Plaintiff demurred to the plea, and the demurrer was sustained and judgment thereon rendered for defendant sustaining the plea. Plaintiff's appeal raises, as the only question involved, the correctness of this judgment.

The protection of nonresident parties and witnesses from service of process in civil actions while in attendance at the trial of an action has always been liberally extended at common law in the various states of the United States. There has been some variation as between plaintiffs on one hand and defendants and witnesses on the other, but in general it may be said that this protection has been extended to parties and witnesses. In some states this privilege is upheld, largely as necessary to the full and adequate exercise of jurisdiction by the court; in others, that primarily it is the privilege of the citizen conferred for his just protection in order that in consequence of the performance of a duty or by submission to process he shall not be subject to injury and oppression. If the view first stated is stressed in decision, the exemption is usually carried to its greatest extent, if the latter view controls more or less limitation is apt to ensue. All of this relates to a person concerned in any way as a party in civil actions.

The question involved in the instant case, where the exemption is sought with respect to the attendance of a nonresident defendant appearing for trial in a criminal case has been variously decided, depending largely upon the view taken by any given court upon the extent and value of the analogy to rules prevailing in civil procedure. The decisions upon this question are conflicting; the earlier inclining to apply with great liberality the most comprehensive expression of exemption prevailing in civil proceedings, while later views derived from a more thorough consideration of the principles underlying rules of exemption in a series of cases have tended to produce a more narrow and restricted rule.

A leading case in the group last mentioned is that of Netograph Mfg. Co. v. Scrugham (1910) 197 N.Y. 377 90 N.E. 962, 27 L.R.A. (N. S.) 333, 134 Am.St.Rep. 886. The circumstances in this case are on all fours with those in the instant case. A person arrested on a criminal charge gave bail, and afterward returning for trial, at a day after the conclusion thereof by a verdict in his favor, was served with civil process, which latter was set aside by the court on the ground of the privilege of the defendant from service while attending his trial on a criminal charge. The Court of Appeals, on reviewing the matter, reversed the action of the lower court and held the defendant liable to service of civil process on the facts appearing as above. The court in its opinion, after observing that it had always been the policy of the common law in furtherance of the due administration of justice to assert the freedom of parties and witnesses from the liability to public and private prosecution while engaged in the trial of an action, not only as a personal privilege to such persons, but a privilege of the court, continues:

" It is not only not a natural right but 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. The privilege should, therefore, not be extended beyond the reason of the rule upon which it is founded. Since the obvious reason of the rule is to encourage voluntary attendance upon courts and to expedite the administration of justice, that reason fails when a suitor or witness is brought into the jurisdiction of a court while under arrest or other compulsion of law. Such a suitor or witness does nothing to encourage or promote voluntary submission to judicial proceedings. He comes because he cannot do otherwise. That seems to be the basis for the exception to the general rule of privilege which is illustrated in cases where persons are brought into the jurisdiction of a court under extradition from other states or foreign countries. Williams v. Bacon, 10 Wend. 636; Slade v. Joseph, 5 Daly, 187; Adriance v. Lagrave, 59 N.Y. 110; People ex rel. Post v. Cross, 135 N.Y. 536. The privilege is held not to exist in such cases. From time immemorial it has been the law that persons actually in custody under criminal process are not exempt from service of process in civil suits. * * *

This brings us to the concrete question whether there is any difference, so far as this question of privilege is concerned, between a person actually in custody and one who is at large under bail. The question is not free from difficulty, but we incline to the view that a person who is charged with or convicted of crime and is at large on bail, is constructively in the custody of the law. He is not in actual confinement, it is true, but he is in the custody of his bondsmen, who, by giving bail for him, have been constituted his jailors. ‘ When bail is given, the principal is regarded as delivered into the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner.’ Taylor v. Taintor, 83 U.S. 366, 371. * * *

This concise and authoritative exposition of the law of bail leaves little to be said as to the status of a principal under a criminal bail bond. For many of the practical affairs of life he is as much at liberty as though he were not charged with crime. For the purpose of answering the charge, however, he is constructively in the custody of the law. His bailors have the right and power at any moment to become his jailors for the purpose of placing him in actual confinement. Under such circumstances he cannot be said to be free to come at will, and when he submits himself to the directions of the courts having cognizance of the charge against him, he does not act voluntarily, but under compulsion of law. We are aware that this view is apparently at variance with some decisions in other jurisdictions, notably in England, but we think the administration of justice will be best subserved by keeping the rule of privilege within the reason upon which it rests. That reason fails unless the person claiming the privilege is a free moral agent who may come into or depart from the jurisdiction or not as he pleases. Despite the just tendency of courts to extend the rule so far as possible, it must not be carried to the extent of wholly preventing creditors from pursuing their ordinary civil remedies against debtors, and particularly when the latter involve no restraint of the debtor's person."

See, also, In re Henderson, 27 N.D. 155, 145 N.W. 574, 51 L.R.A. (N. S.) 328, where, in a case exhaustively reasoned, the same conclusion is reached.

To extend, to persons under bail who...