29 S.E. 947 | N.C. | 1898
The defendant is a non-resident of this State and was served with a summons in this action while attending Swain Superior Court to prosecute an action, in which he was sued, as a witness in his own behalf, and the affidavit (which was taken as true, not being controverted) States that he was not in this State for any other purpose whatever.
The motion to dismiss the action was properly refused, but the point relied on, which should regularly have been raised by a motion to strike out the return of service, is that a summons or other civil process cannot be served upon a non-resident who comes into this State for the sole purpose of attending a litigation in our courts as suitor or witness. This is the well-established rule of law and the very numerous cases to that effect are collected in some eighteen pages of small type in the notes to Mullen v. Sanborn, 25 L.R.A., 721. They represent so universal and so uniform a holding upon the point that it is unnecessary to do more than refer to them. The rule is thus stated in Rorer Interstate Law, 26: "It is the policy of the law to protect (non-resident) suitors and witnesses from service of process in civil actions, whether the process be such as requires their arrest or be merely in the nature of a summons. Service in such cases will be set aside as well upon general principles as upon positive law, if there is such." As stated in many of the cases, this settled rule is based upon high considerations of public policy, not upon statutory law, since it is the public (786) interest that suitors and witnesses from other States who cannot be compelled to attend our courts, may not be deterred from voluntarily appearing by fear of being served with process in other actions, their presence, if obtainable, being calculated to enable the courts to more thoroughly educe the truth of the matters in litigation.Baldwin v. Emerson,
In some few of the earlier cases, it was questioned whether the privilege was not restricted to witnesses, but all the later and better considered cases embrace parties as well as witnesses, more especially since the change which enables parties to be examined as witnesses.Matthews v. Tufts,
The exemption covers the time of their coming, stay, and reasonable time for returning — eundo, morando, et redeundo, — but the exemption is strictly restricted to those instances in which the person claiming it is in this State for the purpose of attending the litigation as a party or as a witness, and for no other purpose whatever. If he is here for no other cause besides attendance upon the suit, the ground of the exemption ceases and he is subject to service of process. There is also an exception where there is an action brought against a plaintiff for maliciously bringing the very action which he comes to the State to prosecute. Mullen v. Sanborn, supra.
The exception being long and universally recognized, and not being statutory, could only be repealed by an express statute, which no State has passed. In many States, as in this (Code, sections (787) 1367 and 1735), there are statutes prohibiting the arrest in civil actions of parties attending court as witnesses or jurors. But this is held (Cooley, C. J., in Mitchell v. Herron,
Service in such cases is not void but voidable; hence, the party, before appearing in the action, should by special (788) appearance move to set aside the return of service (Thornton v. Machine *492 Co.,
The well settled rule that no appeal lies from a refusal to dismiss an action (Guilford v. Ga., supra, and numerous other cases cited in Clark's Code, 2 Ed., p. 559, and supplement thereto, p. 83) is based upon the patent reason that if an appeal lay in any case from a refusal to dismiss, a defendant could in every case get from six to eighteen months delay by such motion. The presumption is always that the judge correctly refused the motion to dismiss, and if it is in doubt, the point can be decided on the appeal from the final judgment. But while, by a long line of uniform decisions, such appeals do not lie, the Court in a proper case has often discussed and expressed its opinion upon the point intended to be presented, when there were circumstances which justified its doing so. S.v. Wylde,
Appeal dismissed.
Cited: Cooper v. Bogle, post, 789; White v. Underwood,
(789)
