Nichols v. Horton

Shiras, D. J. The general principle that parties, witnesses, and jurors are privileged from service of legal process in civil actions while in good faith they are in attendance upon the hearing of a cause in court, is well recognized by the authorities, and in the case of parties and witnesses this exemption from service of process extends to the taking of testimony before a master or commissioner preparatory to the final submission of the cause to the court. In point of time, the privilege exists during the time fairly occupied in going to and returning from the place of trial or hearing, as well as during the time when the party is in actual attendance at the place of trial. See Brooks v. Farwell, 2 McCrary, 220; [S. C. 4 Fed. Rep. 166;] Juneau Bank v. McSpedan, 5 Biss. 64; Bridges v. Sheldon, 7 Fed. Rep. 17; Plimpton v. Winslow, 9 Fed. Rep. 365; Lyell v. Goodwin, 4 McLean, 29; Person v. Grier, 66 N. Y. 124; 1 Greenl. Ev. §§ 316, 317. Although this rule came into existence at a time when, in civil causes, the defendant might be arrested and held in custody to answer -the writ unless bail were given, and although that fact had doubtless great weight in bringing about the adoption of the rule, as it is manifest that if a party, juror, or witness attending upon one [330] 'cause could be arrested in another and kept in custody, it would impede and possibly defeat the proper disposition of the cause on tidal; yet this was not the sole or only reason for the adoption of the rule in question. If it had been the sole reason for the rule, then, upon the abolition in any state of the right to arrest a defendant in a civil cause, the rule itself might be deemed to have been thereby abrogated. Experience, however, has shown that in order that causes may be fully heard, and the orderly administration of justice may be assured, it is necessary that parties, witnesses, and jurors shall be protected against service of process in civil actions while they are in good faith in attendance upon the trial of causes. If parties or witnesses are liable to be sued when in attendance upon the court in which the cause with which they are connected is pending, and by reason thereof they may be compelled to appear and answer in a foreign tribunal, or in one different and far distant from that wherein they could alone have been sued, had they not been in attendance upon the court, the fear thereof might well deter them from attending at the place of trial; and if they were beyond the reach of a subpoena, a party might, as a consequence, be deprived of the personal presence and testimony of witnesses whose absence would be fatal to his cause. Without, however, endeavoring to give all the reasons why the privilege in question is still recognized and enforced in states under whose laws no arrest of the person can be made, as part of the process for the institution of civil actions, it is sufficient to say that the rule exists and is in force, and in all cases coming within its reason and true purpose this court will not hesitate to enforce it. Is it, however, a rule without exception, to be rigorously enforced in every case without reference to circumstances ? Suppose a party or witness is in attendance upon a trial in a given case, and while so in attendance he wrongfully takes or injures the property of a third person, or iñflicts bodily injury upon him, is such third person to be debarred from bringing an action at once against the wrong-doer, because he happened to be a party or witness in some cause then pending for trial, but with which the third person has no connection ? Suppose a party or witness comes from a distant state, or possibly from a foreign country, to attend upon a trial, and while on his journey he commits a wrong, is the party thus injured obliged to submit to the wrong and postpone the bringing of an action for redress, until ' the wrong-doer has returned to his home, which, as suggested, may be in a foreign country, or, if in the United States, may be so far dis [331] tant as practically to defeat all remedy if the injured party is obliged to follow him to his home? Suppose a party or witness, when in attendance upon a trial, becomes indebted to a hotel-keeper for his board, or to a merchant for goods purchased, to be paid for on delivery, and the debtor refuses to pay his just debts thus contracted, are the creditors powerless in the premises, and are they to be compelled to await the return of the debtor to his own home before they can invoke the protection of the law ? If such a rule should be upheld, would it not be enabling parties and witnesses to perpetrate wrongs upon third parties, and then to escape responsibility by invoking the privilege attaching to their character as parties or witnesses in pending litigation, thus converting that, which was originally intended as a shield for their protection, info a weapon of offense, to the injury of innocent third parties ? Where the parties or witnesses, while in attendance upon the trial, including going to and returning from the place of trial, do no wrong or injury to third parties, they may claim the protection of the privilege of exemption from service of civil process, but where they lay aside the character of parties or witnesses, and for their own behalf and benefit give cause for the institution of actions against them on behalf of third parties, then it would seem just to hold that they cannot invoke the privilege in question, but that by such action on their part they must be deemed to have waived the exemption. In the exercise of the right of bringing suit in such cases, it would be the duty, however, of such third party, in instituting his proceedings for the protection of his rights, to see to it that he does not in fact interrupt the trial of the cause upon which the party or witness is in good faith in attendance. In the case at bar, it appears that the defendant herein, when served with the notice for the commencement of the action, was in attendance upon the trial of a cause in Howard county, Iowa; that while in said county the sheriff of Mower county, Minnesota, by his direction and express authority, levied a writ of attachment upon the property of the plaintiff herein, this being done on the eleventh day of April, 1882. The wrong complained of was not committed until that day, and the cause of action did not arise until that time, and as the evidence shows that the defendant was on that day sending directions to the sheriff to aid him in seizing the property, it must be held that he was an active participant in the taking of the property, and that he cannot protect himself from responding to the action brought against him, by the alleged owner of the property, under the [332] privilege usually accorded to witnesses and parties in attendance upon a trial of a cause in court. There was no claim made, that the mere service of the notice on defendant, requiring him to appear and answer at the September term of the court, the service being made in April, in any manner interfered with the trial of the cause then pending and upon which the defendant herein was then in attendance. Upon the facts disclosed on the record, we hold that the motion to quash the notice and service thereof must be overruled, and it is so ordered. See Larned v. Griffin, 12 Fed. Rep. 590; Matthews v. Puffer, 10 Fed. Rep. 606, and note.