Engle v. Manchester, 46 App. D.C. 220

Engle v. Manchester

46 App. D.C. 220 | D.C. Cir. | 1917

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The question involved in this ease is the privilege of the party who was served with civil process while in voluntary attendance upon a judicial hearing wherein his interests were involved. *228Plaintiff and defendants jointly were rival applicants for a patent for the invention described in the bill, and the interference had been duly declared in the Patent Office between them. The defendants, residing in Rhode Island, were in attendance xipon the taking of the testimony of the plaintiff before an Examiner at the time of the service of this process in the city of Washington. Plaintiff was testifying at the time when the process was served, and defendants had come to the place of hearing upon the advice of counsel that their attendance was important to them in the depending interference.

This question of privilege of a party to exemption from service of civil process while in attendance upon a hearing has been the subject of discussion in very many American cases. The following afford examples: Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 27 L.R.A.(N.S.) 333, 134 Am. St. Rep. 886, 90 N. E. 962; Parker v. Marco, 136 N. Y. 585, 20 L.R.A. 45, 32 Am. St. Rep. 770, 32 N. E. 989; Powell v. Pangborn, 161 App. Div. 453, 145 N. Y. Supp. 1073 ; Rix v. Sprague Canning Machinery Co. 157 Wis. 572, 52 L.R.A.(N.S.) 583, 147 N. W. 1001; State ex rel. Watson v. Judge of Superior Ct. 40 Mich. 729; Mitchell v. Huron Circuit Judge, 53 Mich. 541, 19 N. W. 176; Mulhearn v. Press Pub. Co. 53 N. J. L. 153, 11 L.R.A. 101, 21 Atl. 186; First Nat. Bank v. Ames, 39 Minn. 179, 39 N. W. 308; Breon v. Miller Lumber Co. 83 S. C. 221, 24 L.R.A.(N.S.) 276, 137 Am. St. Rep. 803, 65 S. E. 214; Bishop v. Vose, 27 Conn. 1; Greer v. Young, 120 Ill. 184, 11 N. E. 167; Tiedemann v. Tiedemann, 35 Nev. 259, 129 Pac. 313. These cases are not all in agreement as to the extent of the privilege. The Federal courts are in substantial agreement. See Larned v. Griffin, 12 Fed. 590; Nichols v. Horton, 4 McCrary, 567, 14 Fed. 327; Kinne v. Lant, 68 Fed. 436; Hale v. Wharton, 73 Fed. 739; Central Trust Co. v. Milwaukee Street R. Co. 74 Fed. 442; Roschynialski v. Hale, 201 Fed. 1017; Stratton v. Hughes, 211 Fed. 557; Feister v. Hulick, 228 Fed. 821. There has been a division of opinion in the state courts upon whether the privilege is limited to actual arrest upon civil process without extending-to exemption from ordinary civil proc*229ess, but the tendency has been constantly to enlarge the right of privilege so as to afford full protection to suitors and witnesses from all forms of process of a civil character during their attendance before any judicial tribunal, and for a reasonable time in going and returning. This doctrine seems to he established by the weight of authority.

The question of privilege was raised by motion to dismiss, instead of by plea in abatement; hut no exception was taken to the form of the pleading at the time, although that point is made in the argument of counsel for the appellant. It is true that AA'here a question involves matters of fact which are not apparent upon the record, the better practice would require the filing of a plea in abatement. Fischer v. Munsey Trust Co. 44 App. D. C. 212-216. But the point is immaterial at this time, because the facts involved are undisputed, and it would serve no useful purpose to remand the cause for trial on this ground.

Public policy, the due administration of justice, and protection to the parties and witnesses alike demand the extension of this privilege, and vrliether the suit has been commenced by arrest or by mere summons of subpoena is immaterial. No one should be deterred from attending the place of trial by reason of liability to be sued in a foreign or distant jurisdiction. The proceeding in this case, Avliile one of interference in the Patent Office, is judicial in its nature, involving important private and public interests. The taking of testimony was proceeding in due order, and the defendants, having been advised of the importance of their attendance, were within the protection of the privilege. The court was right in setting aside the process, and its judgment is affirmed with costs. ,Affirmed.