Sewanee Coal, Coke & Land Co. v. W.W. Williams & Co.

• Decision Date: 21 January 1908
• Citation: 107 S.W. 968,120 Tenn. 339
• Parties: SEWANEE COAL, COKE & LAND CO. v. W. W. WILLIAMS & CO.
• Court: Tennessee Supreme Court

107 S.W. 968

120 Tenn. 339

SEWANEE COAL, COKE & LAND CO. v. W. W. WILLIAMS & CO.

Supreme Court of Tennessee.

January 21, 1908

Error to Circuit Court, Davidson County; John W. Childress, Judge.

Action by W. W. Williams & Co. against the Sewanee Coal, Coke & Land Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

A. L Davis, for plaintiff in error.

W. F Davis and James S. Pilcher, for defendants in error.

HENDERSON J.

This is an action by defendant in error in the circuit court of Davidson county, begun by service of summons in Davidson county on Earl Martin, secretary of plaintiff in error, a corporation with its situs in Coffee county. At the time of the service Martin was in Davidson county in attendance before the United States Circuit Court under subp na to appear before the grand jury in that court. Plaintiff in error files plea in abatement to the summons, claiming exemption of its secretary from service of process while in Davidson county in obedience to said subp na. There was demurrer to this plea on a number of grounds, which was sustained by the circuit court; and plaintiff in error has appealed.

The case is before the court on the sufficiency of this plea. No question is made as to whether the court of Davidson county could obtain jurisdiction of a corporation with its situs in Coffee county by service of summons on its secretary in Davidson county. So we treat the case as presenting the single question of the plea and demurrer.

Chapter 1 of the Acts of 1794 on the subject is the re-enactment of section 44, c. 2, of the Acts of 1777 of the General Assembly of North Carolina, and is carried forward in our Code of 1858 as section 3828 (Shannon's Code, § 5616), which is as follows:

"During the attendance of any person summoned as a witness, and during the time that he is going to and returning from the place of such attendance, allowing one day for every thirty miles of travel, no writ, process, warrant, order, judgment or decree in any civil cause, subp na to testify as a witness only excepted, shall be served upon him."

In Martin v. Ramsey, 7 Humph. 261, it is said that the object and policy of the statute is "to enforce and secure prompt and punctual attendance of witnesses--an object not likely to be obtained if suits could be commenced against them, or other process be served upon them, during the time of their attendance. This privilege of the witness is by no means limited to mere exemptions from arrest. The most general and comprehensive terms are used in the statute, and the only exception made is that of a summons of a witness, and that exception gives significance and effect to the plain and obvious terms of the act."

In Baker v. Compton, 2 Head, 471, it is held that strictness and accuracy are required in such plea. The plea in the case at bar, by its averments, comes up to the requirements of that case.

This exemption from civil process while in attendance as a witness in obedience to order of court exists independent of statute, and it has had a most liberal construction when defendant brings himself clearly within the rule.

In Parker v. Marco, 136 N.Y. 585, 32 N.E. 989, 20 L. R. A. 46, 32 Am. St. Rep. 770, it is said by the New York Court of Appeals:

"The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his residence for the purpose of attending court in an action to which he is a party, or in which he is to be sworn as a witness, is a very ancient one. It has always been held to extend to every proceeding of a judicial nature taken in or emanating from a duly constituted tribunal which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and it is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration of justice"--citing Person v. Grier, 66 N.Y. 124, 23 Am. Rep. 35; Matthews v. Tufts, 87 N.Y. 568.

To the same effect are Larned v. Griffin (C. C.) 12 F. 592; Bridges v. Sheldon (C. C.) 7 Fed. 44.

Quite a number of authorities on the subject are cited under the case of Mullen v. Sanborn, 79 Md. 364, 29 A. 522, 25 L R. A. 721, 47 Am. St. Rep. 421, among them Holmes v. Nelson, 1 Phila. (Pa.) 217, where it is said that it is very important and right that persons leaving the place of their domicile to attend such duties in obedience to a direct or indirect requirement of law should be protected by the law, while so engaged, from being caught up to answer to actions brought in a...