93 F. Supp. 344 | W.D. Okla. | 1950
The defendant, Milner Export and Trading Company, Inc., a Mississippi corporation, has moved to quash a summons served
The complaint in this case alleges in substance that defendant became, obligated to plaintiff by agreeing that it would see that Dandee paid the balance due to the plaintiff on an open account. This agreement is alleged to have arisen out of a refinancing arrangement made between Dandee and defendant which was Dandee’s principal creditor. Plaintiff and defendant have both made claims in the Dandee reorganization.
The defendant’s motion to quash is based upon the form of the summons,
When a nonresident voluntarily attends a judicial proceedings as a witness
However, to this general rule there is an exception upon which the plaintiff relies. The immunity is not a personal privilege but is a privilege of the court at which the person was in attendance at the time of service and for this reason if the immunity would “obstruct judicial administration in the very cause for the protection of which it is invoked”, then the immunity should be withheld.
Assuming arguendo that the defendant became a guarantor of plaintiff’s claim against Dandee, the question is whether the reorganization will be impeded and an
The traditional immunity should not be withheld unless there are strong reasons for doing so. No such reasons are apparent in this case so the defendant’s motion to quash is sustained.
. Hereafter called Dandee.
. The summons was directed to R. E. Milner, rather than to the corporate defendant, and the original return showed that it was delivered to him in person together with a copy of the complaint. The. complaint was against the corporation and in the praecipe for summons the corporation was the named defendant but summons was to issue to R. E. Milner.
. See note 2, supra. Rule 4(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., states that “The summons shall * * * contain * * * the names of the parties, and be directed to the defendant * * However, Rule 4(h) provides for amendment of the “process or proof of service thereof * *
. Defendant alleges that “it has not qualified to do business in Oklahoma and is not doing business in the State of Oklahoma * *
. Hollidge v. Crumpler, 1934, 63 App.D. C. 330, 72 F.2d 381; Harris Foundation v. District Court, 1945, 196 Okl. 222, 163 P.2d 976, 162 A.L.R. 272.
. Stewart v. Ramsay, 1916, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192; Harris Foundation v. District Court, 1945, 196 Okl. 222, 163 P.2d 976, 162 A.L.R. 272. Cf. Burroughs v. Cocke & Willis, 1916, 56 Okl. 627, 156 P. 196, L.R.A.1916E, 1170.
. Union Water Development Co. v. Stevenson, D.C.N.D.Cal.1919, 256 F. 981; Lonsdale Grain Co. v. Neil, 1918, 73 Okl. 221, 175 P. 823; accord, Commonwealth Cotton Oil Co. v. Hudson, 1916, 62 Okl. 23, 161 P. 535. See 113 A.L.R. 154.
. In re Smith Const. Co., D.C.N.D.Ga. 1915, 224 F. 228; Morrow v. U. H. Dudley & Co., D.C.N.D.Pa.1906, 144 F. 441.
. Lamb v. Schmitt, 1932, 285 U.S. 222, 228, 52 S.Ct. 317, 319, 76 L.Ed. 720.
. Id. In the following cases the necessary relationship was found to exist and the immunity withheld: Lamb v. Schmitt, 1932, 285 U.S. 222, 52 S.Ct. 317, 76 L.
. Morrow v. U. H. Dudley & Co., D.C. N.D.Pa.1906, 144 F. 441.