Winder v. Penniman

• Decision Date: 23 February 1921
• Docket Number: 12.
• Citation: 105 S.E. 884
• Parties: 181 N.C. 7, 13 A.L.R. 364 v. PENNIMAN. WINDER
• Court: North Carolina Supreme Court

105 S.E. 884

181 N.C. 7, 13 A.L.R. 364

WINDER v. PENNIMAN.

No. 12.

Supreme Court of North Carolina

February 23, 1921

Appeal from Superior Court, Pasquotank County; Allen, Judge.

Action by L. L. Winder against Nicholas G. Penniman, trading as the Baltimore Pulverizing Company, wherein defendant moved to strike out the sheriff's return, to set aside attachment to discharge the property seized, and to dismiss the action which motion was refused by the clerk of court, affirmed on appeal to the judge, and defendant appeals. Reversed.

A summons under civil process cannot be served on a nonresident coming into the state solely to attend to litigation as suitor.

The defendant was a resident of Maryland and came to Elizabeth City on February 11, 1920, to prosecute an action brought by him against Winder and also as witness in said case, and it is found as a fact that he came for no other purpose; that a few minutes after the case against Winder was determined on said February 11, 1920, the plaintiff in this action (the defendant in that) had a warrant of attachment served upon the property of plaintiff which was found by the court to consist of a suit case and handbag containing his wearing apparel, a ledger, an order book, and salesbook which he had brought for use as evidence in the trial of said case against Winder. This attachment was served by the sheriff on the night of February 11 about 10 o'clock, the plaintiff intending to take an early train at 6:30 the next morning for Norfolk, his most direct route home. He had arrived in Elizabeth City on the day before for the sole purpose of said trial, which was completed on that day, and intended to leave on the next morning. After the attachment was served on his personal baggage the defendant filed a replevin bond for return of the attached property, but not for the discharge of the attachment, and made no motion to set it aside.

Thereafter on February 13, the defendant appeared specially by counsel who moved to strike out the return of the sheriff, to set aside the attachment and discharge the property seized thereunder, and to dismiss the action. This motion was refused, and on appeal to the judge the judgment of the clerk was affirmed, and the defendant's motion denied. Appeal by defendant.

Aydlett & Simpson, of Elizabeth City, for appellant.

Meekins & McMullan and Thompson & Wilson, all of Elizabeth City, for appellee.

CLARK C.J.

"A summons under civil process cannot be served upon nonresidents who come into this state for the sole purpose of attending to litigation either as suitor or witness. Such rule is based upon high considerations of public policy, and not upon statutory law, since it is to the best interests of the public that suitors and witnesses from other states, who cannot be compelled to attend courts here, may not be deterred from voluntarily appearing. The exemption of nonresident suitors or witnesses from service of civil process while attending courts in this state covers the time of their coming, their stay, and a reasonable time for returning." Cooper v. Wyman, 122 N.C. 784, 29 S.E. 947, 65 Am. St. Rep. 731, where the subject is fully discussed; also Brown v. Taylor, 174 N.C. 423, 93 S.E. 982, L. R. A. 1918B, 293.

It is admitted that the defendant, a nonresident, was protected from service while in the state to attend the trial of his action and for a reasonable time before and after the trial, and that he was preparing to leave immediately after the termination of his cause. But it is contended that he waived his exemption by giving a bond for the release of his property, and for this the plaintiff relies upon Mitchell v. Lumber Co., 169 N.C. 397, 86 S.E. 343. We think this case differs from that, in that in the Mitchell Case the defendant had property in this state which was not exempt from attachment, and which the defendant had a right to attach whether the defendant was in the state or not. Therefore, when the defendant came in, gave bond, and secured the release of his property which was rightfully attached, he submitted himself to the jurisdiction of the court, but here the undertaking was only a replevin bond, and did not ask the release of the attachment as to any other property of the defendant which might be found in this state, and does not bind the principal and his surety to pay any judgment which may be recovered in the action. It is merely an engagement to redeliver the attached property, or pay the value thereof, to the sheriff to whom execution upon any judgment obtained by the plaintiff might be issued, and the order authorized the sheriff to surrender the possession of this property to the defendant, but did not dissolve the attachment nor withdraw the property from the lien thereon.

Clearly, therefore, it has not the same effect as a bail bond or an undertaking for the discharge of the attachment. It does not release the lien of the attachment nor stand in the place of the attached property, and hence the giving of such an undertaking is not an acknowledgment of the jurisdiction of the court, or the validity of the attachment. This view is clearly discussed and stated in Winter v. Packing Co., 51 Or. 97, 93 P. 930, 4 Corpus Juris, 1331, and other cases in the notes thereto.

The law to this purport is clearly stated and ably discussed in Larned v. Griffin (C. C.) 12 F. 590, which has been cited with approval in U.S. v. Sanborn (C. C.) 28 F. 302; Ex parte Levi (D. C.) 28 F. 652; Kinne v. Lant (C. C.) 68 F. 441; Hale v. Wharton (C. C.) 73 F. 740; U.S. v. Zavelo (C. C.) 177 F. 537; Roschynialski v. Hale (D. C.) 201 F. 1018; Parker v. Marco, 30 Abb. N.C. 63; Pearce v. Sutherland, 3 Alaska, 303; Parmentier v. Classies, 5 Alaska, 88; Powers v. Arkadelphia Lumber Co., 61 Ark. 508, 33 S.W. 842, 54 Am. St. Rep. 276; Brooks v. State, 3 Boyce (Del.) 34, 79 A. 790, 51 L. R. A. (N. S.) 1132, Ann. Cas. 1915A, 1133; State v. Biedler, 6 Boyce (Del.) 262, 99 A. 273; Engle v. Manchester, 46 App. D. C. 228; Thornton v. Machine Co., 83 Ga. 291, 9 S.E. 679, 20 Am. St. Rep. 320; Gregg v. Sumner, 21 Ill.App. 112; Lawrence v. Guaranty Investment Co., 51 Kan. 222, 32 P. 816; Copas v. Anglo-American Provision Co., 73 Mich. 546, 4 N.W. 690; Malliat v. Vogel, 125 Mich. 291, 84 N.W. 279; Monroe v. St. Clair Circuit Judge, 125 Mich. 283, 84 N.W. 305, 52 L. R. A. 192; Chubbuck v. Cleveland, 37 Minn. 468, 35 N.W. 362, 5 Am. St. Rep. 864; Christian v. Williams, 111 Mo. 441, 20 S.W. 96; Id., 35 Mo.App. 303; Palmer v. Rowan, 21 Neb. 458, 32 N.W. 210, 59 Am. Rep. 844; Ela v. Ela, 68 N.H. 314, 36 A. 15; Martin v. Whitney, 74 N.H. 506, 69 A. 888; Dickinson v. Farwell, 71 N.H. 214, 215, 51 A. 624; Parker v. Marco, 136 N.Y. 589, 32 N.E. 989, 20 L. R. A. 46, 32 Am. St. Rep. 770; Gourley v. Williams, 46 Okl. 633, 149 P. 229; Burroughs v. Cocke, 56 Okl. 627, 156 P. 196, L. R. A. 1916E, 1172; Ellis v. Degarmo, 17 R.I. 716, 24 A. 579, 19 L. R. A. 562; Farwell v. Des Moines Brick Mfg. Co., 97 Iowa, 286, 66 N.W. 176, 35 L. R. A. 68; Sewanee Coal, Coke & Land Co. v. Williams, 120 Tenn. 343, 107 S.W. 968; State v. Roberts, 87 Wis. 292, 58 N.W. 409; State v. Polacheck, 101 Wis. 432, 77 N.W. 708.

The defendant in the principal case cited, as in this, was attending court trial and was there for no other purpose. He was sued and arrested in a civil suit, gave bond, and was released, and the court held that giving the bond was not...