Case v. Rorabacher

Campbell J. Rorabacher, the defendant in error, having been sued by service of summons, pleaded in abatement that at the time [539] of service he was attending court as a party to another law suit which had been noticed for trial at. that term, and he therefore claimed privilege from such process.’ This plea was demurred to, and the demurrer was overruled,, and error is brought upon that decision. We are not prepared to say that cases may not exist where a party to a suit may be entrapped into attendance for vexatious purposes, and where service of j>rocess may not be an abuse to be relieved against. But we think any general exemption from service of jirocess without arrest, merely because a party is attending court awaiting the trial of a cause, is unauthorized by any settled rule of law, and is not required by public policy. We do not feel called on to enlarge personal immunity to such a needless extent, and we can conceive of no legal principle which demands it. Privilege from legal process is, in general, only needed in cases where an arrest is allowed, and where, therefore, service of process directly interferes • with liberty of action. There were at Common Law some privileges also against being sued except in particular courts, and some arising out of peculiar official duties or relations. It is very certain, however, that under our non - imprisonment system very few of these privileges are required for any legitimate purpose, and we think it would be improper to extend them by any supposed analogies, when so much of their reason has ceased to exist. We think the demurrer should have been sustained, and the judgment must be reversed with qosts, and the defendant must plead .over within twenty days. Christiancy and Cooley JJ. concurred; Martin Ch. J. did not sit.