State ex rel. Weast v. Moore

• Decision Date: 06 May 1912
• Citation: 147 S.W. 551,164 Mo.App. 649
• Parties: STATE ex rel. L. S. WEAST, Relator, v. JOHN T. MOORE, Respondent
• Court: Missouri Court of Appeals

147 S.W. 551

164 Mo.App. 649

STATE ex rel. L. S. WEAST, Relator, v. JOHN T. MOORE, Respondent

Court of Appeals of Missouri, Springfield

May 6, 1912

Motion for Rehearing Denied June 3, 1912.

WRIT DENIED.

Writ denied.

Hamlin & Seawell for relator.

(1) The only Missouri cases upon this subject that we have been able to find are as follows: Christian v. Williams, 111 Mo. 429; Baisley v. Baisley, 113 Mo. 544. (2) In Wilson Machine Co. v. Wilson, 22 Fed. (Conn.) 803 this question is squarely presented and the court at page 804 calls attention to the case of Bishop v. Vose, 27 Conn. 1, cited in 113 Mo. 540, and drew a distinction between a non-resident plaintiff attending court and a non-resident defendant, holding that the latter was privileged. In Wilson v. Donaldson, 20 N.E. 250, 117 Ind. 356, 10 Am. St. Rep. 48, the Supreme Court of Indiana construes a statute similar to ours and upon similar facts, holding that the statute and the word "found" is considered in connection with the policy of the law which exempts a non-resident defendant from process while attending court. This is a strong decision and we call especial attention of the court to it. In 32 Cyc. 492 the doctrine of privilege is declared and cases of different states cited.

Moore & Thornbury for respondent.

OPINION

Original Proceeding by Writ of Prohibition.

GRAY J.

This is an original proceeding in this court to obtain a writ of prohibition, prohibiting the Honorable John T. Moore as judge of the thirty-first judicial district of this state from entertaining further jurisdiction in a certain case in Stone county, wherein Nellie Wickersham is plaintiff, and the relator is the defendant.

The question to be determined is presented in the following agreed statement of facts: "It is agreed that the sole and only question to be decided is whether a non-resident of the state of Missouri when attending court as a defendant, and witness, in said cause in obedience to a summons for the sole purpose of protecting his interests therein and of testifying in his behalf at the trial thereof, in an action brought against him by a resident of the state and county wherein said action is pending, can be served with process and compelled to appear and defend an action by the same party, after said former action is voluntarily dismissed by said resident plaintiff and the same petition immediately re-filed in said court and summons issued and served upon said non-resident defendant while attending said court as a party defendant and witness in his own behalf in the former action and before he has a reasonable time to return to his home or leave said county after his attendance upon the court for the purposes aforesaid."

If we determine the question by the weight of authority, it must be answered in the affirmative. In Mullen v. Sanborn, 25 L.R.A. 721, the authorities are collected in a note consisting of eighteen pages, and an examination thereof will disclose that the authorities are practically unanimous and hold that a non-resident party to a suit cannot be served with process while temporarily within the state for the purpose of attending as a party and a witness. The rule is well stated in Cooper v. Wyman, 29 S.E. 947, 65 Am. St. Rep. 731, wherein the court said: "As stated in many of the cases, this settled rule is based upon high considerations of public policy, not upon statutory law, since it is the public interest that suitors and witnesses from other states, who cannot be compelled to attend our courts, may not be deterred from voluntarily appearing by fear of being served with process in other actions; their presence, if obtainable, being calculated to enable the courts to more thoroughly educe the truth of the matters in litigation. In some few of the earlier cases it was questioned whether the privilege was not restricted to witnesses; but all the later and better considered cases embrace parties as well as witnesses, more especially since the change, which enables parties to be examined as witnesses."

The late cases are collected in Breon v. Lumber Co., 65 S.E. 214, 24 L.R.A. (N.S.) 276; Barber v. Knowles, 82 N.E. 1065, 14 L.R.A. (N.S.) 663; United States v. Zavelo, 177 F. 536; Chittenden v. Carter, 74 A. 884; Brooks v. State ex rel., 79 A. 790; Long v. Hawken, 79 A. 190, and they fully sustain the proposition that the litigant is privileged while so attending as a party and a witness in a foreign state.

If we are not bound by controlling decisions of our own court, we would be inclined to adopt the rule supported by this great weight of authority, but the respondent claims our Supreme Court in Christian v. Williams, 111 Mo. 429, 20 S.W. 96, and Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29, declared otherwise. If this contention is true, then it must control our action. In the first case the defendants were residents of Randolph county, this state, and the plaintiff, of the city of St. Louis. One of the defendants had been served with process in the city of St. Louis, and while in attendance on the trial in that case, was served with a summons in another action, and he invoked the rule of privilege in his behalf. The court held against him, and said: "Witnesses as well as parties are protected from arrest while going to the place of trial, while attending there for the purpose of testifying in the cause, and while returning home. But this privilege at common law extended only so far as to discharge from arrest, when arrested on civil process, and did not abate the suit; that still went on, and the party arrested was held upon common bail, that is, he entered his appearance in the action. . . .

"Of course these remarks do not apply to a case where a party is induced by fraud or compelled by criminal process to enter within the boundaries of a county other than that of his residence.

"It is said that public policy demands that suitors, witnesses etc., should be privileged from the service of civil process while attending court, lest they be deterred from attending and thus the administration of justice be obstructed. However this might be as to non-resident witnesses as to whom no process could...