Sofge v. Lowe

• Decision Date: 03 May 1915
• Citation: 176 S.W. 106
• Parties: SOFGE v. LOWE.
• Court: Tennessee Supreme Court

176 S.W. 106

SOFGE v. LOWE.

Supreme Court of Tennessee.

May 3, 1915.

Certiorari to Court of Civil Appeals.

Action by T. W. Sofge against Arthur H. Lowe. Upon judgment sustaining defendant's plea in abatement, plaintiff petitions for writ of certiorari. Denied.

McGehee, Livingston & Farabough and Graves & Pearson, all of Memphis, for appellant. Marsilliot & Chandler, of Memphis, for appellee.

WILLIAMS, J.

Sofge, plaintiff in error in this case, in 1913 brought suit in the United States District Court at Helena, Ark., against Lowe on the same cause of action attempted to be asserted in the pending case. Lowe was and is a resident of the state of Massachusetts, and went from there to Helena to attend a trial of the federal court case as a suitor and necessary witness in his own behalf.

While returning from that place and while passing through Memphis, Tenn., en route to his home, Lowe was served with process in this suit. He filed his plea in abatement on the ground that he was exempt from the service of such process while so returning from attendance upon court at Helena, and this plea was sustained by the trial judge. The Court of Civil Appeals has affirmed the judgment of the circuit court, and the case is before us on a petition for certiorari.

The point relied on and pressed by appellant Sofge is that the exemption from service of process is confined as to enforcement to the jurisdiction within which was held the court attended by Lowe; that only the courts of Arkansas, into which he was drawn by the Helena litigation, will concern themselves with his protection from the service of process.

The general rule is that suitors, plaintiff or defendant, from a foreign jurisdiction, are exempt from the service of civil process while attending court, and for such reasonable time before and after trial as may enable them to go from and return to their homes. Sewanee, etc., Coal Co. v. Williams, 120 Tenn. 339, 107 S. W. 968; 32 Cyc. 492, 494.

The rule is of ancient origin and is mentioned as early as the reign of Henry VI of England (Year Book, 20 Henry VI, 10), and the reason underlying it is the proper administration of justice in the protection of the courts and those called to attend them. The privilege of the individual is incidental; the protection of courts of justice is the primary object of the rule. Bridges v. Sheldon (C. C.) 7 Fed. 44; Brooks v. State, 3 Boyce (Del.) 1, 79 Atl. 790, 51 L. R. A. (N. S.) 1126, Ann. Cas. 1915A, 1133, and cases cited.

The question whether such a suitor is entitled while passing through an intermediate state, in going from or returning to his home, to be protected from service in a suit begun therein, has been decided, it seems, in but two cases. In both of these the exemption was denied. The authority of these cases is weakened by the fact that in neither was the decision by a court of last resort.

The first case was that of Holyoke, etc Co. v. Ambden (C. C.) 55 Fed. 593, 21 L. R. A. 319, decided by Carpenter, District Judge. There Ambden, a citizen of Vermont, was sued in Massachusetts while journeying through that state to attend court in Connecticut. It was there said:

"The second contention of the defendant is that the service of this writ is in violation of the policy of the law which exempts from service parties and witnesses going to and from court on the business of the court. An examination of the cases shows that it has been held that parties to a suit are exempt from arrest, and in some cases from suit by summons, while within the jurisdiction of the court on the business of the court, and that this exemption has in some cases been extended to witnesses. In none of them, however, has it been held that a party or witness is exempt from service in any other jurisdiction than that in which his attendance as a party or as a witness is required. I cannot see any reason for further extending this rule. It is established by courts to protect their own process and their own suitors, by the assurance that the court in which the party has brought his action, or into which he has been summoned, * * * will not permit its own process, or that of other courts in the same jurisdiction, in another action, to embarrass the proceedings. It seems to me that evils greater than these sought to be remedied would arise if the courts of one state should assume so to guard and protect all the other courts in the country. The rule is in derogation of common right, and restrains the plaintiff from suing, lest a greater evil may arise than that involved in the temporary suspension of his right to bring his demand into a court of justice having jurisdiction to determine it. The rule therefore ought to be extended with great caution, and to extend it beyond the jurisdiction immediately concerned seems to me to be unnecessary and mischievous."

This federal decision was quoted and followed by the court of common pleas of Susquehanna county, Pa., in the case of Cronk v. Wheaton, 23 Lancaster Law Rev. 206, 15 Pa. Dist. Rep. 721, where it was said:

"The researches of diligent counsel have been unable to find and cite any case in any state in which it has been held that this privilege from arrest or summons on civil process extends beyond protecting the party or witness in attendance upon a court of the state in which the process issued from which the exemption is claimed. * * *

"In the case at bar, the defendant was voluntarily in the state of Pennsylvania and county of Susquehanna when he was served with process; he was not here in response to any process of any court of the state of Pennsylvania, or any agreement by the parties in this suit; he came into this state because he found it more convenient in going from his home in Deposit, N. Y., to Binghampton, in New York, and I can see no reason why the fact that his business at Binghampton, in the state of New York, was to attend the courts of the state of New York, should exempt him from service of process in the state of Pennsylvania."

Notwithstanding these authorities, we are persuaded that the true rule was announced by the trial judge and the Court of Civil Appeals in the instant case.

In cases which have had under consideration the protection of a suitor or witness going from one county in a state to another and subjected to service in a suit in an intermediate county — a closely related point — it has been held that there existed the privilege of exemption. Tyrone Bank v. Doty, 2 Pa. Dist. R. 558, 12 Pa. Co. Ct. R. 287; Hoffman v. Judge of Circuit Court, 113 Mich. 109, 71 N. W. 480, 38 L. R. A. 663, 67 Am. St. Rep. 458.

A state court will, by way of comity, enforce the privilege of a witness or suitor who, while attending a federal court, has been sued in the state court....