Christian v. Williams

Sherwood, P. J.

Two questions are presented by the record: First, whether the circuit court acquired jurisdiction by reason of the service on either of the •defendants; second, whether any waiver occurred on the part of either of the defendants to object to the .jurisdiction of the circuit court.

I. Section 2009, Bevised Statutes, 1889, so far as necessary to quote it, declares that: “Suits instituted by summons shall, except as otherwise provided by law, be brought: First, when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county.”

Section 2021 of the statute provides:' “When there are several defendants residing in different counties, the plaintiff may, at his option, have a summons directed to ‘any sheriff in the state of Missouri/ or have a separate summons directed to the sheriff of any county in which one or more defendants may be found.”

It will readily be seen from these provisions that where a defendant is “found” in a county where a plaintiff resides, and is thereupon served with process, that there exists no statutory authority for the issuance of another writ to the county of the defendant’s residence -for service upon another defendant in the same action. It results from this absence of statutory authority that the service of process on Davis conferred no jurisdiction on the circuit' court of the city of St. Louis, over the person of that defendant; and that court acquired none over him except upon the ground of waiver, a point to be hereafter noticed.

II. Witnesses ás 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. 1 Grreenleaf on Evidence [14 Ed.] sec. 316. This privilege extends to all who have any relation to a cause, as parties, attorneys, bail, etc. 1 Tidd’s Practice [Am. Notes] 195-6. 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. Black’s Law Dictionary, title, Bail, Common; Long’s case, 2 Mod. 181; Cameron v. Lightfoot, 2 W. Bl. 1192; King v. Coit, 4 Day, loc. cit. 132-7; Bishop v. Vose, 27 Conn. loc. cit. 11,12; Sadler v. Ray, 5 Rich. 523, and cases cited; Blight’s Ex’r v. Fisher, 1 Pet. C. C. 41, and. cases cited; Legrand v. Bedinger, 4 T. B. Mon. 539; Catlett v. Morton, 4 Litt; 122; Hunter v. Cleveland, 1 Brev. 168; Hopkins v. Coburn, 1 Wend. 292; Bours v. Tuckerman, 7 Johns. 538; Pollard v. Railroad, 7 Abb. Prac. (N. S.) 70, and cases cited; Booraem v. Wheeler, 12 Vt. 311; Page v. Bandall, 6 Cal. 32.

The case of Blight’s Ex’r v. Fisher, supra, is said to have been overruled by the subsequent case of Parker v. Hotchkiss, 1 Wall. 269; but the facts in the two cases were essentially different. In the former case the party who was summoned was attending court, and was a resident of New Jersey, where the court was held, while in' the latter the suitor in the United States circuit court was resident outside of the circuit, and was arrested, and it was then held that he was entitled to be discharged, not only from the arrest, but absolutely even from the service of process, and this, as shown by the authorities, was the rule at common law as to a citizen of a foreign state whether party or witness. ‘This was the course pursued in New York as to a non-resident witness. Sandford v. Chase, 3 Cow. 381; Norris v. Beach, 2 Johns. 294. But in Hopkins v. Coburn, 1 Wend. 292, a resident party and suitor in a cause against whom a capias was issued in another cause, and from whom bail was not demanded, but he was required to indorse his appearance or be committed, and having done so he afterwards moved to vacate his appearance thus entered, but this was denied on the ground that he had only done what the court would have required of him had he been actually arrested and compelled to give bail. That case virtually overrules the dictum in Sandford v. Chase, supra, respecting the arrest and absolute discharge of a resident witness.

In Bours v. Tuckerman, supra, a resident party was under recognizance to attend court, and while so attending was arrested on a capias in a civil action, and admitted to bail, and, upon his moving, for his discharge, it was ruled that he should be discharged from arrest on filing common bail.

In the more recent case of Pollard v. Railroad, supra, decided in 1869, it was ruled that a non-resident party attending as a party and witness from another state, and who, while so' attending, was served with a summons in another action, was not entitled to be discharged from such service, or to have the same set aside for irregularity, and the same reasons are given, and some of the same authorities cited where the service was initiated by an arrest. More recently it has beón held in the same state in Person v. Grier, 66 N. Y. 124, that a non-resident party attending as a witness could not be legally served with ordinary civil process, and that suhh service should be vacated. To the same effect is Matthews v. Tufts, 87 N. Y. 568, where a non-resident was in attendance as a party.

It has been ruled in Vermont that the arrest of a resident party attending court as a witness is no cause for abating the writ; but that application could be made to release the person from arrest. Booraem v. Wheeler, 12 Vt. 311. In a subsequent ease in that state, a non-resident suitor and witness, while in attendance at court, was held not amenable to the service of ordinary process in another action brought in that state. In re Healey, 53 Vt. 694.’

In Kentucky, it has been held that a witness resident in one county was not .exempt in another county, when attending court, from the service of a capias indorsed “no bail.” 4 T. B. Mon. and 4 Litt., supra.

In California, a similar ruling has been made. Page v. Randall, 6 Cal. 32.

In Connecticut, it has been determined that even a non-resident party is not exempt from the service of ordinary process, though attending court. Bishop v. Vose, 27 Conn. 11.

In Pennsylvania, from an early day the ruling has been that a resident party attending an appeal in another county is privileged from a summons (Miles v. McCullough, 1 Bin. 76; Hayes v. Shields, 2 Yeates 222); and in that state a resident witness has been held not subject to arrest on federal process. United States v. Edme, 9 S. & R. 147.

In New Jersey, a non-resident attending court as a party was discharged from the service of a summons. Halsey v. Stewart, 1 South. 366. In a still later case a like ruling was made as to a non-resident who was both party and witness. Dungan v. Miller, 37 N. J. L. 182. In the yet more recent case, of Massey v. Colville, 45 N. J. L. 119, the service of a summons was on a resident party in attendance on court, both as party and •witness, and it was ruled that if the defendant so desired a change of venue to the county of-his residence would be ordered; but, if the plaintiff objected to such change, the service of the summons should be vacated.

In Ohio, a citizen of Pennsylvania was extradited from that state and brought into the state of Ohio at the instance of C., A. & Co. Directly after the party extradited entered into a recognizance, he was served with summons and arrested in a civil action brought by C., A. & Co., based on the same alleged cause on which, the criminal arrest was grounded, and it was properly held that the defendant was entitled to have the service of the summons set aside and be discharged from the arrest. The bad faith of the plaintiffs in that case was, however, apparent, and no court could sanction such a gross abuse of the power of extradition. Compton, Ault & Co. v. Wilder, 40 Oh. St. 130. In a later case in that state a resident in one county went to another to attend the hearing of an application for an injunction in which he was interested as party, and, while thus in attendance, he was served with summons, and the lower court quashed the summons and dismissed the action, and this ruling was affirmed. Andrews v. Lembech, 46 Oh. St. 38. But there is a statute in that state which protects suitors, etc., in going to, attending and in returning from court.

In Michigan, a party resident of one county was arrested on a capias in a civil cause and taken to another county, and then having been relieved from arrest was arrested on civil process emanating from a local court, and he was held entitled to his discharge. People ex rel. v. Judge, etc., 40 Mich. 729. The doctrine of the case just cited in a later case was extended so as to embrace and protect - from being served by a summons in a county other than that of his residence, while attending court in the latter county. Mitchell v. Circuit Judge, 53 Mich. 541.

In Massachusetts, a non-resident witness arrested on civil process was held entitled to an absolute discharge. May v. Shumway, 16 Gray, 86. A like ruling was made as to a non-resident in attendance before a legislative committee. Thompson’s case, 122 Mass. 428.

In Nebraska; a party charged with a criminal offense in a county other than that in which he resides, and who has given bail, and in pursuance of such bail attends court, and is discharged, is held not subject to civil process in that county after Ms discharge. Palmer v. Rowan, 32 N. W. Rep. 210.

In Georgia, it has been ruled that a non-resident party could not be arrested in term on civil process, though he had previously been arrested on like process issued out of the same court in vacation. Henegar v. Spangler, 29 Ga. 217.

In North Carolina, it is held that a non-resident witness is privileged from arrest on civil process. Ballinger v. Elliott, 72 N. C. 596.

In the federal courts the rule adopted in Pennsylvania seems to be followed, though but two instances have been found where the question was raised as to a resident, and that was a judge served with a summons when about to set out on his circuit (Lyell v. Goodwin, 4 McLean, 29), and the other & member of the general assembly in attendance in that capacity. Gyer’s Lessee v. Irwin, 4 Dallas, 107.

The other cases decided by the federal courts were all cases of non-resident parties or witnesses, arrested or summoned in a state other than that of their residence. Hurst’s case, 4 Dall. 388; Bridges v. Sheldon, 7 Fed. Rep. 17; Plimpton v. Winslow, 9 Fed. Rep. 365; Atchison v. Morris, 11 Fed. Rep. 582; Larned v. Griffin, 12 Fed. Rep. 590; Small v. Montgomery, 23 Fed. Rep. 707; Kauffman v. Kennedy, 25 Fed. Rep. 785; Juneau Bank v. McSpedan, 5 Biss. 64; Brooks v. Farwell, 2 McCrary, 220.

Upon this review of the authorities, it is found that the states of Vermont, Kentucky, Connecticut, California, South Carolina give full support to the contention of the plaintiff, while opposed to it are rulings in Pennsylvania, from an early period, and Michigan, New Jersey and Ohio in recent cases, and in the federal courts only two exceptional cases, while in New York the later rulings being with regard to non-residents do not apply here, and the earlier rulings in that state are in accord with the doctrine for which plaintiff contends The later cases in Massachusets, and possibly, the earlier ones, relate only to non-resident parties or suitors.

In an earlier case in Michigan, it was ruled that a party could be served with summons while attending court. Case v. Borabacher, 15 Mich. 537. This is attempted to be explained in 53 Mich, on the theory that the party there sued was attending court within the jurisdiction of his residence; but, taking this as true, what becomes of the rule that a party is protected from any civil process while attending court? If he‘ be protected at all, the protection must extend as well to-the courts of his place of residence as elsewhere. But the correct doctrine as already shown by the common-law authorities is that he was only exempt from arrest, and not from mere ordinary process. This was so ruled in England as late as 1856. Poole v. Gould, 1 H. & N. 99.

' Either the principles of the common law must prevail or our statutory provisions. If the former, then the contention of the plaintiff is valid. If on the other hand our statute is to govern, then defendant Williams was clearly “found” in the city of St. Louis, within the meaning of section 2009, at the time of the service of plaintiff’s writ of summons upon him. Besides, the statute in question has been on the statute books at least since 1835. Laws of that year, 451; Revised Statutes, 1845, 805. And barring a certain class of cases to be presently mentioned, no case has heretofore arisen in this state questioning the right of a party plaintiff to sue and obtain service as in the present instance. This amounts to a contemporaneous and continuous construction of the statute, a settled construction , which has been in existence for over fifty years, a construction which should not be lightly set aside.

III. 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. As to which see Marsh v. Bast, 41 Mo. 493; Capital City Bank v. Knox, 47 Mo. 334; Byler v. Jones, 79 Mo. 261.

IY. 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 issue, or as to non-resident suitors, as to whom it would be improper now to speak, it is sufficient to say that as-to witnesses resident in this state we have process by which their attendance can be compelled from any part of this state (Revised Statutes, secs. 8929, 8930) and that the public policy of a state is best ascertained by her legislative enactments, especially when they have received such a long-continued, uniform and practical construction as has the one in question. Moreover, it could hardly be deemed the public policy of this state to deny the service of civil process on a party attending court, when we have a statute (sec. 2021) whereby a plaintiff may have a summons directed to “any sheriff in the state of Missouri,”, or a separate summons, etc., with a possibility of bringing parties and suitors hundreds of miles to attend a common forum, remote from their homes and remote from their witnesses.

Y. It was competent for the defendants to unite in the same answer matter in abatement and matter in bar. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 264.

YI. It is not thought that the defendants, by filing an answer containing the same averments as to jurisdiction as the one successfully demurred to, waived any right they may have possessed to question that jurisdiction. Though perhaps irregular, their course could not be deemed a waiver, especially so when the plaintiff joined issue by his reply.

VII. In Byler v. Jones, supra, it was distinctly ruled by this court on a demurrer to an answer, which set up that by abuse of criminal process a party was taken away from the county of his residence to a distant county, in order to get service on him in a civil action, that such service was worthless, and no jurisdiction thereby acquired, and the judgment of the lower court was reversed. This ruling is plain and easily understood. The cause was afterwards tried and went by appeal to the Kansas City court of appeals (22 Mo. App. 623),where the judgment was reversed because the lower court gave the following declaration of law on behalf of the plaintiff: “That, although defendant was brought into the jurisdiction of this court by virtue of an arrest on a charge of rape, and served immediately after his acquittal or discharge with process in this case, yet the finding should be for the plaintiff, unless the court is satisfied by a preponderance of the evidence, that said arrest was made for the purpose of getting him into the jurisdiction of this court, for the purpose of serving him with civil process in this case.” This declaration of law was in entire accord with the rulings of this court when that case was here. Something is said by the Kansas City court of appeals in that case about the plaintiff acting “maliciously and without probable cause,” but it is not apparent what is meant by this expression; or what possible relevancy it had to the matter then in litigation. The difference in rulings between this court and the Kansas City court of appeals caused the case at bar to be sent to this court by the St. Louis court of appeals.

We overrule tbe case of Byler v. Jones, 22 Mo. App. supra, on tbe point mentioned, and affirm tbe judgment herein as to tbe defendant Davis, but reverse it as to defendant Williams, and remand tbe cause to tbe St. Louis court of appeals to be proceeded with in conformity to this opinion.

All concur.

Case Details

Case Name: Christian v. Williams

Court Name: Supreme Court of Missouri

Date Published: Jul 2, 1892

Citation: 20 S.W. 96

Court Abbreviation: Mo.