No. 35741. | Miss. | Jan 22, 1945
On March 1, 1943, appellee was a resident of Clarksdale in Coahoma County in this state. On that day a declaration in tort was filed against him in the circuit court in said county and he was personally served with summons.
On July 20, 1943, appellee moved to the State of Texas, his removal having no connection whatever with the pending action, and since that date he has continued to be a resident and citizen of Texas. The case was set for trial in the said circuit court for January 13, 1944, and appellee left his home to attend the trial, not only as defendant but as a witness and for no other purpose, and he reached the place of trial on that morning.
When the case on the day set was called for trial, it was found that the attorney for the plaintiffs who had prepared the case for trial and who had been depended upon to lead in its prosecution was sick and could not appear, and associate counsel not being willing to proceed alone moved for a continuance, which was denied. Thereupon, plaintiffs took a nonsuit and, having with them a copy of the declaration, they immediately filed it as a new suit, and had a summons issued at once, which was served on appellee, the defendant, as he was leaving the courthouse.
Thereafter, appearing especially for that purpose, appellee moved to quash the process, on the ground that appellee, being a nonresident, was exempt from the service of process in another suit while attending court as a witness or party, the general rule on that subject being as stated in Arnett v. Carol C. Fred R. Smith, Inc.,
The parties in their briefs have cited no case directly in point, and it is to be assumed, therefore, that no such case was called to the attention of the learned circuit judge. *307
There is a case precisely in point decided by the Circuit Court of Appeals of this the Fifth Circuit. The case is Central Farmers' Trust Co. v. Rorick et al.,
Reversed and remanded.