Skinner & Mounce Co. v. Waite

• Decision Date: 01 July 1907
• Docket Number: 383.
• Citation: 155 F. 828
• Court: U.S. District Court — District of Idaho
• Parties: SKINNER & MOUNCE CO., Limited, v. WAITE et al.

155 F. 828

SKINNER & MOUNCE CO., Limited, v. WAITE et al.

No. 383.

United States Circuit Court, D. Idaho, Northern Division.

July, 1907

George W. Tannahill and S. O. Tannahill, for plaintiff.

James E. Babb, for defendant Waite.

DIETRICH District Judge.

The defendant Waite never resided in the state of Idaho, but at all times referred to in the record was a resident of the city of Portland, in the state of Oregon. He owned real estate in Nez Perce county, Idaho, the title to which he conveyed to the defendant Burns as security for a loan. This suit was commenced in the state district court of Nez Perce county to recover from the defendants $2,500 alleged to be due to the plaintiff on account of commission for the sale of this real estate. No service was made on Burns. Waite, having been served with process in Nez Perce county, appeared specially for the purpose of removing the cause to this court, and also for the purpose of quashing the service of summons.

It seems that the plaintiff is an Idaho corporation, engaged in the real estate brokerage business at Lewiston, Idaho, and it claims that the defendants listed with it for sale the real estate referred to, and that it procured a purchaser, but after it had procured such purchaser the defendants declined to convey the property to him and transferred the same to other parties. Thereupon the purchaser brought suit in the state district court against Walter J. Burns and his wife Mary C. Burns, and the parties to whom the property was conveyed, to enforce specific performance of a contract alleged to have been made with the purchaser to convey the property to him. Waite was not made a party to the suit, but by notice the defendants demanded that he appear and defend their title to the property. Responding to this notice, Waite came to Lewiston to participate in the trial, and after coming into the state he was served with a subpoena requiring him to attend and testify as a witness upon behalf of the defendants. During the course of the trial and after the subpoena had been served summons in this action was served upon him while he was in the courtroom. The contention presented by his motion to quash the service of summons is that Waite was exempt from service by reason of the fact that he came into the state virtually as a defendant, and for the purpose of making a defense in a suit to which he was a party in interest, and further, because he was being held in the state by the subpoena requiring him to be present as a witness.

No question is made by the plaintiff that the cause has been properly removed to this court, or that the objection to the service of summons was made seasonably and in a proper manner; nor is it claimed that the defendant came into Idaho for any other purpose than to participate in the trial of the action in the state court, or that he transacted any other business in the state, or that he remained in the state longer than was required after the subpoena was served upon him. As I understand the position of counsel for the plaintiff, it is tacitly, if not expressly, conceded that, however diverse the decisions of the state courts may be, the rule in the federal courts, almost without exception, is that a person going into another state as a witness or as a party to attend upon a trial of a cause is exempt from process in such state while he is necessarily attending there in respect to such trial.

The only case from a federal jurisdiction cited upon behalf of the plaintiff and supposed to support the validity of the service under consideration is Iron Dyke Copper Min. Co. v. Iron Dyke R. Co. et al. (C.C.) 132 F. 208. The contention of the defendants in that case was that 'their presence was necessary as plaintiffs and witnesses,' and that, therefore, they were exempt from service. The plaintiff 'contended, against the motion, that this exemption only exists in favor of witnesses, and that it does not exist in any case in favor of the plaintiff. ' It will thus be seen that it was conceded by both parties that the exemption exists in favor of witnesses for the defendant, and the contention was over the application of the rule to the case of a plaintiff. But the court declined to consider the question in dispute, for the reason, as the court stated, that:

'It appears that these defendants organized a corporation and made surveys for the purpose of acquiring valuable franchises, in violation, as alleged, of the right of the Iron Dyke Copper Mining Company, and that they were so engaged at the time of the service upon them. In such a case the defendants are not entitled to plead the exemption claimed for them.'

And this is in accordance with a general exception that, where persons entitled to the exemption lay aside their character of parties or witnesses and engage in transactions giving rise to the institution of actions against them by third parties, they are deemed to have waived the privilege which they might otherwise claim.

It is apparently attempted to bring this case within the general exception thus stated by suggesting that this action grew out of the issues involved in the case which the defendant Waite was attending at the time of the service of summons, and by further suggesting that the defendant was in the state of Idaho as a witness in furtherance of the wrong for which the plaintiff sues in this action. But I am not able to fully appreciate the bearing or force of these suggestions. Upon the showing made by the record, I cannot see how the success or failure of the plaintiff in that case could affect the cause of action set forth in the complaint in this suit. If, as alleged in the complaint, the defendants Waite and Burns entered into an agreement with the plaintiff by which the plaintiff was to receive 5 per cent. of the selling price if they would find for the defendants a purchaser for the land referred to, and if, as alleged, the plaintiff, pursuant to this agreement, found a purchaser who was able and willing to purchase the land for the price for which the plaintiff was authorized by the defendants to sell it, it would hardly be conceded by the plaintiff that it could not recover from the defendants its commission, after the same was fully earned, because the defendants, in violation of their understanding with the plaintiff, declined to make the sale. If the allegations in the complaint are true, the plaintiff's right of action fully accrued when it found a purchaser who was able and willing to purchase the property at the price for which the defendants had authorized the sale, and its right to recover could not be made to depend on the adjudication of the issues in the suit brought by the purchaser for specific performance.

In the following federal cases the general rule of exemption is stated in various forms and is applicable to these circumstances: Parker v. Hotchkiss, 1 Wall.Jr. 269 Fed. Cas. No. 10,739; Lyell v. Goodwin, 4...