54 Neb. 438 | Neb. | 1898
This action was brought in’ the district court of Douglas county to recover the sum of &75,000. The defendant was personally served with summons in that county. He made special appearance in the cause and objected to jurisdiction of the court over his person, and moved to quash the service of the summons, on the ground that he was a non-resident and had been in attendance before the court in another cause as a witness, and a reasonable time had not elapsed after the trial thereof to enable him to return to his home. The service of process was set aside and the action dismissed.
The record discloses that the defendant is a British subject and a citizen and a resident of England; that on September 19, 1894, he came to Omaha solely as a party and witness to be present at the trial of a cause then pending in the district court of Douglas county, wherein Phoebe R. E. E. Linton and Adolphus Frederick Linton were plaintiffs, and John Whitaker Oooper and others were defendants, with the intent to depart from Omaha at the earliest possible moment after the conclusion of the trial, which wns compienced on Monday, October 1,
Public policy, the due administration of justice, and the protection of parties and witnesses demand that nonresident suitors and witnesses alike be protected from the service of civil process while necessarily in attendanee upon court. This privilege or immunity extends to parties and witnesses not only while coming to, returning from, and in actual attendance upon, the court for the purpose of trial, but for a reasonable time after the hearing to prepare for departure. This is the settled doctrine of this and other courts. (Palmer v. Rowan, 21 Neb. 452; Mayer v. Nelson, 54 Neb. 434; Fisk v. Westover, 4 S. Dak. 233; Wilson v. Donaldson, 117 Ind. 56; First Nat. Bank of St. Paul v. Ames, 39 Minn. 179; Mulhearn v. Press Publishing Co., 53 N. J. Law 150; Parker v. Marco, 136 N. Y. 585; Andrews v. Lembeck, 46 O. St. 38; Jacobson v. Wayne Circuit Judge, 76 Mich. 234; Gregg v. Sumner, 21 Ill. App. 110; Christian v. Williams, 35 Mo. App. 297; Partridge v. Powell, 180 Pa. St. 22; Kinne v. Lant, 68 Fed. Rep. 436; Smythe v. Banks, 4 U. S. 329.*) Judge Thompson, in Christian v. Williams, 35 Mo. App. 297, uses this language: “The reason which extends the immunity to a non-resident witness is, that he cannot be brought within the
The testimony adduced in support of the motion to set aside the service of process herein tends to show that after the conclusion of the hearing on October 11, 1894, defendant had a large amount of business to transact with his counsel in connection with said cause as a party litigant; that important features were to be discussed and contingencies to be provided for in relation thereto, since the decision had .not been- announced; that his personal effects and baggage'were to be packed; that hundreds of documents which he had brought with him from England to be used in the trial of said cause had become disarranged and scattered during the trial and it was necessary to gather these up, sort, and arrange them so a portion could be left with his counsel and the remainder packed for reshipment for England; that affidavits were required to be prepared for the purpose of supporting the motion to quash the service of the writs in the two other cases already mentioned winch had been sued out against Cooper; that defendant and his counsel, immediately after the close of the hearing on October 11, began to make all necessary preparations to enable defendant to leave Omaha and the state at the earliest practicable moment consistent with the business which brought Mm
The motion to set aside service of process in this cause was properly sustained, and the judgment, therefore, must be
Affirmed.