State ex rel. Brainard v. Dist. Court of Eighth Judicial District In And for Natrona County

• Decision Date: 02 February 1926
• Docket Number: 1330
• Citation: 34 Wyo. 288,243 P. 123
• Parties: STATE EX REL. BRAINARD v. DIST. COURT OF EIGHTH JUDICIAL DISTRICT IN AND FOR NATRONA COUNTY ET AL. [*]
• Court: Wyoming Supreme Court

243 P. 123

34 Wyo. 288

STATE EX REL. BRAINARD v. DIST. COURT OF EIGHTH JUDICIAL DISTRICT IN AND FOR NATRONA COUNTY ET AL. ^[*]

No. 1330

Supreme Court of Wyoming

February 2, 1926

Original proceeding for writ of Prohibition by the state on the relation of A. J. Brainard against the District Court of the eighth Judicial District in and for Natrona County, and Bryant S. Cromer Judge thereof.

Demurrer overruled.

L. H Sennett and S. S. Combs for plaintiff.

One attending a trial as a witness in a state other than that of his residence, is immune from service of civil process; 21 R C. L. 1305; Chittendan vs. Carter, 74 A. 884; Wilson vs. Donaldson, 20 N.E. 250; Murray vs. Wilcox, 64 L. R. A. 534; Bulgiano vs. Gilbert Lock Co., 25 A. S. R. 582; Pierson vs. Grier, 66 N.Y. 124; Malloy vs. Brewer, 64 N.W. 1120; Rix vs. Sprague Canning Machinery Co., 52 L. R. A. N. S. 583; State ex rel Lane vs. District Court of the Second Judicial District of the State of Montana for the County of Silver Bow L. R. A. 1916E, page 1079; State ex rel Co. vs. The Dist. Ct. of the Eighth Judicial Dist., 235 P. 766; prohibition is the proper remedy in this case; State of Montana vs. Lane, supra; State vs. Dist. Court, supra; in re Rice, 155 U.S. 396, 22 R. C. L. 6.

Foster & Wehrli for defendants.

One coming in voluntarily cannot claim immunity; Fields vs. Ragelmeir, 19 Ohio D. 164; the Ohio statute was adopted here as our section 6049; Compton vs. Wilder, 40 O. S. 103; immunity can be claimed by those who are involuntarily within the jurisdiction; Kreel vs. Kreel, 12 O. D. 634; Currie vs. Kirsh, (Ky.) 74 S.W. 268; Lewis vs. Miller (Ky.) 74 S.W. 691; Tiedman vs. Tiedman (Nev.) 129 P. 313; Quynn vs. McDoneld, (Idaho) 43 P. 74; the history of the exemption is reviewed in Ellis vs. DeGarmo, (R. I.) 24 A. 579; the exemption or privilege, continues while the person is engaged in privileged duties; State vs. Court (Wash.) 189 P. 1016; it should be governed by the rule of comity; State vs. Ireson (Utah) 225 P. 603; the privilege does not extend to civil process; Christian vs. Williamson (Mo.) 20 S.W. 96; Baldwin vs. Emerson (R. I.) 15 A. 83; relator has a remedy at law; Tiedman vs. Tiedman, supra; Andrews vs. Lembeck (Ohio) 18 N.E. 483; the case of Compton vs. Wilder differs on the facts in that, Wilder was brought into the state upon extradition and thereupon sued in a civil action.

L. H. Sennett & S. S. Combs in reply.

The privilege was not founded on comity, but upon the principle that courts for their own protection and to facilitate justice may grant the privilege to witnesses coming from other states; 21 R. C. L. 52; Wilson vs. Donaldson (Ind.) 20 N.E. 250; Murray vs. Wilcox (Iowa) 97 N.W. 1087; Rix vs. Co. (Wis.) 147 N.W. 1001; State vs. Court, (Mont.) 154 P. 200; Barber vs. Knowles (Ohio) 82 N.E. 1065; the privilege applies to witnesses from other states even though not served with subpoena in the state; Sherman vs. Gundlach, 37 Minn. 118; Bolgiana vs. Gilbert Co., 73 Md. 132; Palmer vs. Rowan (Nebr.) 59 Am. Rep. 844; Pollard vs. R. R. Co., 7 Abb. Pr. NS 70; 5825 C. S.; prohibition is a proper remedy; State vs. Mau Ausherman, 11 Wyo. 410; 22 Cyc. 605; want of jurisdiction is a sufficient ground; 22 R. C. L. 20; In Re: Morrison, 147 U.S. 14; Ex Parte Wilson (Ala.), 10 L. R. A. (N. S.) 1129; an appeal would not afford a speedy remedy; Havemeyer vs. Court, (Cal.) 24 P. 121; State vs. Court (Wash.) 82 P. 877.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an original action in this court for a writ of prohibition against the District Court of Natrona County, Wyoming, and the judge thereof. The following facts appear from the petition: The relator, A. J. Brainard, is, and for more than twenty-five years has been, a citizen of the state of Idaho. He came to this state about March 20, 1925, for the sole purpose of being a witness in a case wherein the state of Wyoming was plaintiff and one E. C. Bemis was defendant, and on the date mentioned was in attendance at the district court of Natrona county as such witness. He came here upon the request of the prosecuting attorney of Natrona county. On the day stated, and while so in attendance upon said court, a summons was served upon him in an action brought in said county, wherein one Earl Bemis (son of E. C. Bemis) is plaintiff and the relator herein is defendant, in which action Earl Bemis seeks to recover from the relator $ 20,000 damages, on account of his alleged wrongful arrest on February 14, 1925, in Natrona County, Wyoming, upon the complaint of the relator herein. On March 21, 1925, the relator made a special appearance in that suit for the sole purpose of objecting to the jurisdiction of the court and moved the court for an order to quash the service of the summons therein, on the ground that such service was unlawful while he was in attendance as a witness as above stated. An affidavit setting forth the facts was attached to the motion. On July 10, 1925 the district court overruled the motion, making a finding of facts, however, substantially to the effect herein stated, and requiring the defendant to answer within twenty days from the date of said order. Before the expiration of that time and on July 30, 1925, this petition, for a writ of prohibition, was filed. An alternative writ was issued citing the defendants to appear and show cause why the writ should not be made permanent. The defendants appeared and filed a demurrer to the petition, upon the ground that it fails to state facts sufficient to constitute a cause of action. The demurrer has been argued and is now before us for disposition.

1. It is a rule of law, almost universally recognized, that while a person attends as a witness in a trial in a state other than that of his residence, he is immune from service of civil process, during actual attendance at the trial and while going to or returning therefrom. This immunity is generally placed upon the ground that it is demanded by public policy, the due administration of justice and the protection of parties and witness alike. In the case of Brooks v. State, 26 Del. 1, 3 Boyce 1, 79 A. 790, Ann. Cas. 1915A 1133, 51 L.R.A. N.S. 1126, the court in speaking of the rule said as follows:

"The rule is based upon reason and was established for the purpose which has been consistently adhered to from the early English authorities down through the modern American authorities upon the subject. The reason of the rule is the proper administration of justice and its purpose is to protect that administration from embarrassments and interruptions caused by disturbances to those whose attendance upon the courts is compelled by duty or necessity. The rule was established for the protection of the courts, that they might the better administer justice, free from interference with and intimidation of suitors, solicitors and witnesses, and disturbance of the court's officers in the exercise of their duties, and became a privilege that affected persons in their several capacities only as their protection from process rendered the administration of justice more certain and complete. The privilege arises out of the authority and dignity of the court. It is founded on the necessities of judicial administration. It has for its primal object the protection of the court, and not the immunity of the person, and is extended or withheld only as judicial necessities require."

The authorities upon the subject are numerous, and we shall cite but a few: 21 R. C. L. 1305-1311, 32 Cyc. 492; Lonsdale Grain Co. v. Neil, 73 Okla. 221, 175 P. 823; Minch & Eisenbrey Co. v. Cram, 136 Md. 122, 110 A. 204; Engle v. Manchester, 46 App. D.C. 220; Winder v. Penniman, 181 N.C. 7, 105 S.E. 884; Dolber v. Young, (N. H.) 81 N.H. 157, 123 A. 218; Diamond v. Earle, 217 Mass. 499, 105 N.E. 363, 51 L. R. A. N. S. 1178, Ann. Cas. 1915D 984; State ex rel. v. District Court, (Mont.) 73 Mont. 265, 235 P. 766; Smith v. Iverson, 63 Utah 292, 225 P. 603.

Counsel for defendant contend that the common law has frequently been misinterpreted in connection with the point under discussion and that while a witness and suitor in a case were exempt from arrest, they were not immune from service of process by which a civil suit for the recovery of a debt was instituted. The main case relied on is Cameron v. Lightfoot, 2 W. Bla. 1190, 96 Eng. Rep. 701, discussed in King v. Coit, 4 Day 129, and referred to in Ellis v. DeGarmo, 17 R.I. 715, 24 A. 579, 19 L. R. A. 560, and Christian v. Williams, 111 Mo. 429, 20 S.W. 96. It appears in the English case that Cameron was sued by Lightfoot for a debt and arrested while attending court as a party to a cause then tried. Upon application he was discharged from the arrest, but was required to enter into what was called common bail, which was the equivalent of an appearance in the action. The court held that the process was not void and remained as a foundation for subsequent proceedings, and that the irregularity did not lie in the process, but in the service of it at a wrong time. Looking at the case merely in the light of present day conditions, when civilization has advanced, a more humanitarian spirit prevails, and arrests for debt are practically unknown, it gives color to the contentions of counsel. But a study of the reasons mentioned in the case in the light of conditions then existing will show that the principles there applied are not inconsistent with the principles hereinbefore mentioned. At common law plaintiff was entitled to arrest a defendant in many, if not nearly all, actions for the recovery of a debt. Such arrest consisted of the apprehension of a person to answer a demand against him in the action, and no other process, we take it, was necessary to bring...