135 Minn. 317 | Minn. | 1917
Appeal from an order denying defendant’s motion to vacate and set
At the time of the commencement of this action, there was pending in the circuit court of the state of South Dakota a certain action, in which the receiver of the Independent Elevator Company, a South Dakota corporation, was plaintiff, and the Hallett & Carey Company, a corporation, was defendant. Defendant is an officer of the Independent Elevator Company and was one of the attorneys for the receiver in that action. He is a practicing attorney of South Dakota, residing at Aberdeen, that state. Prior to the commencement of this action a notice of taking the deposition of a witness who resided in this state, for use on the trial of the South Dakota suit, was duly given and served upon defendant herein as one of the attorneys in that action. At the time and place stated in the notice, namely, Minneapolis, where the witness resided, defendant appeared as an officer of the elevator company, and as attorney for the receiver, solely for the purpose of participating in the taking of the evidence of such witness. Upon arriving in Minneapolis, or soon thereafter, the parties through their attorneys entered into a stipulation as to the facts of that case, and the deposition of the witness ivas not taken. Within an hour or so thereafter defendant was served with the summons in this action, which service, by the order appealed from> the court below declined to set aside.
The sole contention of appellant is that the rule exempting nonresident parties and witnesses from the service of process while attending the trial of an action in our courts (Sherman v. Gundlach, 37 Minn. 118, 33 N. W. 549), applies to and includes nonresident attorneys who come into this state for the same purpose, and to the managing officers of foreign corporations similarly situated, and that since the sole purpose of defendant’s presence in the state, at the time of the service of the summons in this action, was the taking of a deposition of a witness residing therein for use on the trial of the action pending in South Dakota, he was exempt from such service, and that the trial court erred in not vacating the same. We are unable to concur in this contention.
The rule exempting nonresident parties and witnesses from the service of civil process while attending the trial of an action in a state
Our conclusion therefore is in harmony with that reached by the learned trial judge, and the order appealed from is affirmed.