242 P. 681 | Colo. | 1926
THE plaintiff Kelly brought an action in the Denver District Court against Harley L. Pennington and George N. Gibbs on their joint promissory note given to Kelly as payee. Both Pennington and Gibbs were and are residents *483 of the state of Nebraska. Service of summons was had on the defendant Pennington in this state and the case was brought to issue. The defendant Pennington and his counsel induced Gibbs to come to Colorado from the state of Nebraska for the purpose of testifying at the trial in Denver. After Gibbs arrived in Denver Pennington caused service of a subpoena to be made upon Gibbs as a witness in the case, and on the same day, and before the trial of the case ended, the plaintiff caused an alias summons to be issued out of the district court in the same action which was served upon Gibbs. Gibbs, appearing specially, filed a verified motion to quash the service of summons upon the ground that civil process could not be served upon him as a non-resident witness while going from Nebraska to Denver or while in attendance in Denver at the trial of the suit or while returning from Denver to his home in Nebraska. The affidavit of Gibbs in support of the motion to quash is as above stated, and that he came from his home in Nebraska to Denver for the sole purpose of becoming a witness in the case and for no other purpose. The plaintiff resisted the motion and filed an affidavit of his attorney that defendant Gibbs was one of the makers of the promissory note on which the action was brought and that Gibbs voluntarily came to Denver and, obeying the subpoena served upon him after his arrival, was sworn and testified at the trial in behalf of defendant Pennington, and necessarily in his own behalf and in his own interest, that the result of the action was a judgment against Pennington for the amount sued for and that the same has not been paid; that the note was executed in the City of Denver and delivered by the defendants to the plaintiff therein and was made payable in that city. The court sustained the motion to quash and set aside the service of the summons. Assuming this to be a final judgment to which a writ of error lies we think the judgment was right and in accordance with the great weight of authority in this country.
In 32 Cyc. 492, the author says that suitors and witnesses coming from foreign jurisdictions for the sole purpose of *484
attending court in another state, whether under summons or subpoena or not, are usually held immune from service of civil process issued by domestic courts while engaged in such attendance and for a reasonable time in coming and going. The authorities are not unanimous, however, some holding that the immunity extends only to parties defendant and to witnesses and not to parties plaintiff. As the case before us is where one who is named in the complaint as a party defendant, though not served, claims the immunity, we limit our decision to the case in hand and do not express any opinion as to whether or not the immunity extends to a non-resident party plaintiff who comes into the court of another state to invoke its jurisdiction in his own behalf. At the common law the exemption applied only to arrests, but generally in this country the courts, especially the federal courts, have extended the rule and have exempted both suitors and witnesses from the service of process in civil cases where the sole purpose was in the one case to represent their own interests as parties, in the other case to testify as witnesses. In some of the state courts the rule is otherwise. Probably the leading case against the exemption, and the opinion is well reasoned, is Guynn v. McDaneld,
Judgment affirmed.
