Anderson v. Atkins
29 S.W.2d 248
Tenn.
1930
Check Treatment
Me. Cheep Justice Green

delivered the opinion of the Court.

This suit wаs brought in Davidson County against the defendant, a resident of Montgomery County, and was dismissеd below. The defendant was in Davidson County for the purpose of appearing as a defendant in a criminal prosecution when he was served with process in this civil suit. Pleadings were filed properly raising the question and the trial judge hеld that defendant was immune from the service of process in a civil case in Davidson County while in that county for the purpose indicated.

It is settled in Tennessеe that a suitor, plaintiff or defendant, or a witness, from a foreign jurisdiction, is exеmpt from the service of civil process while attending court and for such rеasonable time before and after trial as may enable him to go from аnd return to his home. Sewanee, etc., Coal Co. v. Williams, 120 Tenn., 339; Sofgee v. Low, 131 Tenn., 626; Jett v. Jett, 155 Tenn., 473; Purnell v. Morton Live Stock Co., et al., 156 Tenn., 383. This rule is applied in the case of a witness *139 or suitor from another county as well as ‍‌‌​​‌​‌‌‌‌​​​‌​​‌​​​​​​‌‌​‌​​‌‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‍a witness or suitor from another state.

The rule is designed to guard against the intimidation of witnesses or parties, lest they be prevented from attending court and a speedy and orderly administration of justice he obstructed. It is said that this exemption is for the protеction of the courts as well as by way of a privilege to individuals.

The question here is whether the immunity extends to a defendant in a criminal case. This court has not heretofore considered this question.

The decisions of other courts аre in irreconcilable conflict. The cases are ‍‌‌​​‌​‌‌‌‌​​​‌​​‌​​​​​​‌‌​‌​​‌‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‍collected in Notes 14 A. L. R., 771, 40 A. L. R., 93, 46 A. L. R., 316.

Corpus Juris, vol. 5, p. 466, states the general rule to be that a defendant attending his trial on a criminal charge, and while coming* into or going out of the jurisdiction, does not have this exemption. v Ruling Case Law, vol. 21, p. 313, states the general rule to he to the contrary.

Recent cases sustaining the immunity as to defendants in criminal cases are Church v. Church (App. D. C.), 270 Fed., 361; Rieglar v. Kalamazoo Circuit Judge, 222 Mich., 421; Whited v. Phillips (W. Va.), 40 A. L. R. 83. The reasons sustaining the exemption in civil cases, ‍‌‌​​‌​‌‌‌‌​​​‌​​‌​​​​​​‌‌​‌​​‌‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‍are said to apply with equal force in criminal cases. It is suggested in Church v. Church, that а defendant coming into the jurisdiction voluntarily removes an obstacle to thе administration of justice and saves the expense and trouble of extradition and that it is sound public policy to encourage him in so doing.

Perhaps the lеading cases denying the immunity to defendants in criminal prosecutions are Netograph Manufacturing Co. v. Scrugham (1910), 197 N. Y., 377, *140 and the more recent cases of Re Henderson, 27 N. D., 155, 51 L. R. A. (N. S.), 328, and Ryan v. Ebecke, 102 Conn., 12, 40 A. L. R., 88. The substance of these decisions is that the exemption from suit is not a natural right but in derogation of the common natural right of every creditor to collect his dеbt by subjecting his debtor to due process in any jurisdiction where the debtor may be fоund. Since the exemption is to encourage voluntary attendance upon courts and to expedite the administration ‍‌‌​​‌​‌‌‌‌​​​‌​​‌​​​​​​‌‌​‌​​‌‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‍of justice, the privilege shоuld not be extended beyond the reason of the rule upon which it rests. The reаson of the rule fails when a party to a suit is brought into the jurisdiction of the court under arrest or other compulsion of law. Such a party does nothing to encourag'e or promote voluntary submission to judicial proceedings. He сomes because he cannot do otherwise.

Under the authorities last сited, it is regarded as immaterial that a defendant is on bail. He is still in the custody of the law — of his bondsmen, who have the right and power at any moment to surrender him into аctual confinement. Such a defendant is not a free agent when he submits himself tо the court, does not act voluntarily, but under compulsion of the law.

While the quеstion is not free from difficulty, it seems to us that better reason and better policy deny the immunity under discussion to a defendant in a criminal case, unless the prosеcution is instituted in bad faith for the bare purpose of bringing such u party into the jurisdictiоn to be served with civil process. A defendant brought into the jurisdiction under arrest, in physical custody of the officer's of the law, has never been held exemрt from the service of civil process, unless brought from a foreign nation and protected by some treaty provision.

*141 It results that in our opinion the court below erred in overruling the plaintiff’s demurrer to the defendant’s ‍‌‌​​‌​‌‌‌‌​​​‌​​‌​​​​​​‌‌​‌​​‌‌​‌‌​​‌‌​‌‌‌​‌‌​‌​‍rejoinder herein and the judgment below is reversed and the case remanded fo. further proceedings.