*1 THE IN SUPREME COURT. Geeenleaf Bank. BUFFALO.
GREENLEAF PEOPLE'S BANK OF (Filеd 1903.) 10, November 1. SERVICE OP PROCESS — n Summons—Process—Parties—The Code, 6Jfl, 1367,
secs. 1735. attending a foreign corporation, in the state An officer of judicial party, company sale to which is a is not his corporation. against of summons in an action from service Summons—Attorney Client —The OP SERVICE SUMMONS — Code, and 19. secs. 18 represent state his clients A in the' non-resident ser- pending matter federal court is not vice of summons. J., J., conсurring.
Clakk, Douglas, C. II. Bank T. Greenleaf tbe against People’s ActioN Buffalo Norris beard M. II. Justice Morey, by Judge Court of Da.ee Term, County. tbe Spring Superior for the Prom defendants plaintiff appealed. judgment Bond, F. W. M. for tbe E. W. George Ward Aydlett, plaintiff.
Pruden & for tbe de- & Pruden and Shepherd Shepherd, fendants. re- J. the motion to out tbe Upon strike
Montgomery, sheriff turns (summons) tbe Bank of Morey, Buffalo Norris People’s defendаnts, - facts as found substantially following Honor: action was February, 1898, In tbe begun United States Circuit Cburt tbe District of Eastern North East Coast Cedar Carolina, Company Bank of People’s Buffalo, Y., N. plaintiff Bank of N. A. American Exchange Y., William Buffalo, AUGUST TERM, C.] Gkeenleaf *2 and and and H. Persons Charles A. Henry
Ensign Ensign John R. were defendants. The defendant Hazel, receivers, A. Bis- was one of for and counsel D. Morey defendants, the sell was a decree of Bank. Under vice-president The People’s for of in the sale estate described the pleadings the the real November, took N. on of sale at the 12th Manteo, place C., in was of the case us Service summons the Dare County made the sheriff of Bissell upon by personally State, in the at the Bissell at sale being present the sale, than to for no other advice of purpose counsel, the was served the defendant attend the sale. The upon the onC., in in County, for debt Wake action he was in attendance 2d of at his January, 1903, hotel, of rep- Circuit for purpose the States Court the United upon of a notice the matter in his clients as their resenting cer- a made by of for confirmation sale made the cause the confirming a decree entry tain the сommissioners, purchasers made the title to he the sale and directing Courts. States United with the accordance the practice service times tire were at the Both Bissell and Morey for many been had York State and of New summons residents hav- summons; Bissell service of the the just preceding years for the purpose time solely in North Carolina ing de- and the sale, the Bank at Peoрle’s The representing court the attending purpose solely fendant Morey to attend and especially case, for his clients as attorney in the motion. to the matters embraced who made below, Court of counsel motion
Upon out returns his Honor struck special appearances, Bissell and upon (summons) service sheriffs of he Court that adjudged was Morey, and set aside. vacated The People’s defendant, service made
As to the Is service into this form: itself resolves question Bank, IN THE SUPREME COURT. Greenleae if summons an invalid made managing officer of who is non-resident in this corporation the sole of land which cor purpose his sale sale poration is made under interested, judi being cial decree of Circuit of the States in an Court United action in which the was a foreign corporation party? answer to the sale whether question depends upon such a matter as amounted a judicial proceeding Bissell’s to a rendered presence equivalent constructive pres in the If his Honor ence Court. correct so, judg ment service of the vacating People’s *3 N. 65 Am. St. Bank, Cooper Wyman, C., for, 784, this that and 731, Court held witnesses who Rep., parties were from the of were sum exempted non-residents mons and other civil time of their process the coming into their reasonable stay State, during time are here for no other what when returning, they purpose ever. But are of the of land, opinion we the sale the made under a not such a although judicial judi was decree, cial would interested from ser as procеeding party vice of civil the con Bissell Court process. not before of he the structively; depositions was not attending taking under order of the nor was which Court, he doing anything could alter the of decree sale affect in manner the any action of the commissioner who had been ordered to the make sale. That officer was the directed Court to do all that was to is, dоne the of to make the sale sale; be day the back to Court. At that time the report result defendants have to would then to make day exceptions or to take action concerning they report, any deem was in therefore think his Honor might proper. We error in of the return the sheriff aside setting vacating service of the People’s Dare Bank Buffalo'. TEEM, O.]
Gkeenleaf As to the service upon Morey, attorney at law: The common rule on of service of process question in 2 on Evi- civil actions stated Taylor upon attorneys words: “In wit- sec. order to dence, 1330, these encourage nesses to come forward are not they only protected voluntarily, action for defamation with to state- such any respect ments as in the course judicial make proceeding, they may common with solicitors but, and, parties, barristers, calls who that relation to suit which all have short, persons for their they protected attendance, are while trial,
civil place attending process g'oing while home.” the cause there for the purposes returning rule is In 3 star Commentaries, page Blackstone’s laid down thus: “Also other attorneys persons all clerks, courts of officers justice (for being attorneys, are be there always supposed attending) courts, of the liable to court, arrested by ordinary be a bill of must sued bill usually privilege), (called law in court.” statute We have present being presumably from, ser- to attorneys in this State affording exemption there we them, seen, vice court process upon and, which exempted at common law nothing of our nature summons. served with process being *4 regu- of the summons therefore upon The service his been aside by vacated set lar should have not Honor. the in as to whether not arise case does this
The question from full of an extent, its law to common exemption, but think in this we State, civil action in a prevails arrest not out of the matter of might oрinion an expression in section Code embraced of The The provision place. as here- common law of the were “all such parts
provides of the or so much this State, within force and use tofore incon- to or of or destructive repugnant law as is not common IN THE SUPREME COURT. Greenleaf sistent with the freedom and independence form of the therein government established and which not provided otherwise for, or in not whole abro- part, gated, repealed become obsolete, are to be hereby declared in full within force this State.” matter of exemption service civil process as it actions, at prevailed com- mon has been law, subject the revision our statutory will to law, appear reference sections 1361 and 1735 of The Code. Section 1367 provides shall be witnesses in civil cases their at during attendance any court, and such during time witnesses are to going from the returning place attendance; and section 1735 prohibits sheriff or other officer from under arresting civil process any juror on or to attendance going court record. As returning we said, have we on the legislation subject exemption attorneys but we under our process, think, institutions and because of obsoleteness by non-usage, not ought be afforded to when attorneys except are they actually attendance court due course of their employment attorney.
In a few States of Union very courts have held that law, attendance attorneys upon court, while are exempted from the service of or other not in arrest, those decisions based is reasoning to us. It be borne satisfactory must in mind that the privi- from arrest afforded to lege attorneys court is not so much for the benefit of the as it is for the aid client, court they give- thereof in as officers the due .administration of justice. There error in vacation and aside of setting return of the of the sheriff’s upon Morey, attorney. Error. *5 297 TERM, C.]
OrREENLEAF V. BANK. J., O. Tbe defеndant concurring. Clare:, in this served with while at a hotel summons in this case resident State. He was a contends that because he lawyer, and was court in State another 'State, attending service a should counsel pending, cause therein where a novel in a land struck out. The is one proposition where is law ruling equality principle not is not class of our citizens only special A Constitutiоn. law but is by recognized prohibited by exemp- examination shows no the alleged careful ground no There is prece- tion of summons. lawyers service in this and none dent in to sustain the England proposition, a a recent save case, country single very one-—Hoffman Am. L. 663; Circuit R. 109; A., Mich., Judged, in the resident lawyer, St. 458—which holds Rep., while is from service of same State, or return- State Court of going the Supreme in that cited of the -authorities but none therefrom, ing The reason given sustain its conclusion'. opinion in that the prohibition is that statute opinion the actual suit is restricted to in civil the arrest of counsel does not that this which at he is engaged, of a court sitting from service of counsel the common-law exemption repeal lawyer most on the other eminent hand, summons. But, Cooley, Judge produced, that State (Michigan) Ed.), Limitations (5th work on Constitutional note to not violated by from arrest “Exemption p. says: Besides, in civil cases.” or declaration of citation from ser- law exemption common there latter reason than arrest, other vice had clients whose cause it would be injury was that deprive counsel to suddenly such trial prepared does of his services, them that effect. *6 THE,
298 IN SUPREME COURT. Bank.
Gkeenleaf In Robbins v. 21 Fed. 342 Lincoln, (United States Rep., Circuit Court for it is well said: as Illinois), “Inasmuch attorneys resident be served summons may with while attendance an from another has upon court, State attorney no is It is greater This here. privilege.” point exactly well known that no in this ever his- lawyer in its State has been or he tory privileged, contended even that was privileged, from of sеrvice court. were, If he attending provides IV, Art. now “the Constitution, sec. courts are or always open,” could ever lawyer judge served with summons. In 331. Blackstone England, says (3 could 289) not civil Com., lawyers be arrested on while in attendance court, but could be served with without which was equivalent bill, arrest, sum- service mons. same is stated Bacon’s Abr. B, “Privilege” with if the modification that is sued with another in this is not (as from еven case) “he privileged arrest, though is it court,” attendance evident reason being to prevent class discrimination. The of exemption lawyers it now has been In arrest, seems, repealed England. this English exemption lawyers arrest never has been well one It is known that recognized. most and State, this distinguished judges whose now portrait the walls hangs chamber, this and arrested and imprisoned lоng prevented debt, This im- court. barbarous proceeding law, down from the common prisonment handed debt, it it should have been but while repealed long was, was in force our predecessors applied impartially, did not hold own or bench members their profession was not at common not exempt. law, There one from service of sum- State, any any exemption is arrest under оur statute mons, conferred witnesses secs. only upon jurors. Code, TERM, 0.] *. G-keenleaf not even witnesses and jurors And from service of sucb would since
exempted summons, of their There no reason the court deprive presence. should be from either why lawyers court, more than other officers criers and the like, legislative power sheriffs, clerks, *7 to fit only therefore seen to make еxemption apply has the to to make the exemption witnesses and and, them, jurors, to freedom from arrest only. extend 122 N. 784, v. C., to in Wyman, non-residents,
As Cooper suitors coming non-resident witnesses and this Court held that -were of litigation into this State solely purpose This only. for that purpose while here exempt eocdd because was necessity, put upon ground fill could and since no one else that their compel presence, them to give in interest justice it functions was obtained has not this reasoning “a conduct.” But safe neither holds that which Illinois, some States, notably Ill., 120 v. Greer Young, of summons. from service exempt Goodheart, 5 App., v. Ill. In authorities. Nichols 184, citing State, a defendant involuntarily held that was 574, from service is not exempt of criminal process, virtue Bacon, 10 Y.), v. Wеnd. (N. Williams citing summons, to witnesses only. rule restricted hold that the Other States extend Gunlatch, States Other Minn., Shearman become compe they to since parties also, exemption Mich., 541), Huron, tent as witnesses (Mitchell exemption restricts the that rule, our State adopted An ex parties.” witnesses and two—-“non-resident those privilege showing authorities, brief haustive all the will be parties, witnesses and to non-resident only extends Sanborn, to Mullen v. pages) notes (eighteen found case whatever has No court 721-738. 25 L. R. A., nearest to non-resident lawyers. extended the IN THE. SUPREME COURT. Greehxeaf v. Bank.
approach it is Trust v.Co. 74 Fed. Railroad, Rep., which served subpoena upon non-resident which counsel, prevented, his home to business he returning had left unprovided set aside. That is not for, case sustained by аny previous rests more authority, evidently stated ground the non-resident sub- therein, poenaed president than because railway company, also if he was it is lawyer, far from sus- but, sound, very taining service of alleged exemption summons, did not prevent returning home adjusting for the of his case trial is for business, term. subsequent
The United States Art. sec. Constitution, I, 6, prohibits arrest member House of or a Represеntatives Senator session, except treason, felony provision breach of the is a similar peace. There as to the Nebraska,. members Legislature numerous uniform authorities that such from arrest does not without are collected in *8 a recent very and able opinion Berlet v. 93 (1903) Weary, 238 60 L. W., 609; R. and in v. (Neb.); A., Rhodes 55 23 L. R. Walsh, Minn., 542; 632; v. A., Gentry Griffith, 27 461. Tex., For a reason this so as stronger where, is most States well аs this, lawyers are even exempt from arrest. In v. Goodwin, 4 Lyall 29, a McLean, of a summons from a United States Court a upon judge State in his own court Supreme and while Court, actually was set aside a duty, supposed because being indignity court and interference with business. Even if its can and extended to neither the counsel, sustained dignity court nor of business in this case could be despatch interfered with the service of summons by upon at Morey hotel. in the nature of is
Nor, there reason a things, any why non-resident for a consideration in the lawyer, coming here 301 TERM, N. O.] v. Bank. Gebbnleaf should be from the service of bis profession, exempt
pursuit minis more than a non-resident or of summons physician any or other sues calling. plaintiff ter member a in this State their to the defendants services rendered from herе in If is because exempt request. is of his a “commercial tourist”
the exercise profession, with summons exempt being served right same bill his call prosecuting an action for hotel incurred while would be more plausi ing. Indeed, ground in interstate commerce and he is the lawyer engaged ble;, will neither interfere with not. is Service courts business. Our despatch dignity over those lawyers to non-resident preference extends v. 19; secs. 18 and Rail Manning here. Code, living road, 122 N. C., p.
As far back 1169 ch. George England (10 50) III, Sir Orlando confirming statute Bridge passed ruling 2 C. B. over Tr., Roll, man in Evelyn Car., Benyon Mod., and cited Knowles’ case, (1661), century which members of Par that the at p. (1694), did not exempt exempt liament enjoyed being or from service process ordinary them sued being was deemed too invidious arrest. The privilеge without claim for that even age country, class privilege a,t itself the contention put denied Parliament not for 2 Man. & 437. G., It Cassidey Stewart, rest. because court hold American reverse the from arrest attend were formerly therefore sued they being court, ance *9 census of By with summons. served a being States, in the lawyers were United 114,703 practicing there all these If, in North Carolina. whom were 1,263 from exemption had possessed privilege lawyers years, than one ease could more assuredly of summons, service- THE, IN SUPREME COURT. Greehxeaf If found assert it. it had been so asserted it would have been promptly the Parliament repealed by statute, seeing in a act similar England passed claim that its denying own members service of summons because were and that in members and Senatоrs arrest, arei from service of Congress summons, not privileged though from arrest on Con- civil expressly exempted process by stitution. Even the former lawyers been in modified some States and expressly repealed Carolina, others others, North still, has never or recognized acknowledged. unfounded is claim Equally other defendant, corporation officer Steam Packet (Jеster Co., 131 N. invalid made C., 54), was because when he was a sale of land under of court. decree Such sale acts, like other come before a court for may, but the review, itself sale is not a judicial no proceeding, extends to it. process Such exemptions are re stricted to non-resident witnesses and are parties, per on their own mitted, account or their own benefit, for the benefit of trial, the court at a obtaining evidence when the cannot court of those who can compel presence to facts testify This issue can have no litigation. to the application attendance under party sale, decree in own convenience or benefit. cause,
In the under days of Ecclesiastics in Privilege, rule they held own from the England, profession exempt civil jurisdiction and set certain courts, apart places where men all were under the exempt from service last remnant of such class “Privilege Sanctuary.” I. James have never privileges repealed. Judges claimed for or the courts similar profession legal exemption, either persons With places. knows neither class justice nor admits
judges, caste, *10 TERM, N. C.] Railway
Clegg Co. is administration “every place its special privileges, summer.” and all seasons temple must be aside judgment setting Reversed. J., opinion. concurs above concurring
Douglas, RAILWAY COMPANY. CLEGG SOUTHERN
(Filed 1903.) November Injuries Presumptions. 1. NEGLIGENCE —Railroads—Personal — against company railroad presumption negligence There by its trains. upon simple proof injuries or death caused Objections. Evidence—Pleadings—Exсeptions 2. APPEAL — paragraph part not the record does show what Where evidence, too exception thereto is pleadings was offered on appeal. be considered indefinite will J., dissenting. Douglas, pon Rehearing. see For former opinion PetxtioN
ON 132 N. O., Lewis, G.W. Turner, J. F. Gamble &
Armjield the petitioner. in opposition.
L. G. Caldwell, us a petition This case is before again J. Montgomeey, recover dam- to commenced The action was reheard. killing negligent alleged defendant against ages The evidence intestate. of the plaintiffs defendant one the passing short time show tended