Kendrick v. Thompson

205 A.2d 606, 1964 D.C. App. LEXIS 174

• Court: District of Columbia Court of Appeals
• Decided: December 22, 1964
• Docket: 3530
• Status: Published

Opinions

HOOD, Chief Judge:

'Appellee Thompson, a resident of the State of New York, brought an áction in the District of Columbia Court of General Sessions ' against one 'Levenson, seeking damages for personal injuries resulting from having been struck by Levenson’s automobile while he (Thompson) was a visitor in the District of Columbia. In the course of that action Thompson came to the District of Columbia in response to a notice of the taking of his deposition by counsel for Levenson. While at the office of Levenson’s counsel for that purpose, Thompson was served with process in an action in which appellant Kendrick sought recovery against Thompson for the value of certain legal services.¹

Thompson moved to quash the service upon him on the ground that, as a nonresident temporarily in the District of Columbia for the purpose of prosecuting his action against Levenson, he was immune from process in the action by Kendrick. The motion was granted and Kendrick has appealed.

In Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192 (1916), it was stated: “The true rule * * * is that suitors as well as witnesses, coming from another state or jurisdiction, are exempt from the service' of civil process while in-attendance upon court,, and during a reasonable time in coming and going.” This rule was repeated in Page Co. v. Macdonald, 261 U.S. 446, 43 S.Ct. 416, 67 L.Ed. 737 (1923).

The rule, particularly insofar as it grants immunity to non-resident plaintiffs, has been the subject of criticism;² but the Supreme Court has not departed from the rule, although it recognized an exception to the rule in Lamb v. Schmitt, 285 U.S. 222, 52 S.Ct. 317, 76 L.Ed. 720 (1932), where the second action was sufficiently related to the first.³ In this jurisdiction the rule has been applied on numerous occasions.⁴ In Schwarz v. Thomas, 95 U.S. App.D.C. 365, 367, 222 F.2d 305, 307 (1955), the court, after stating that the non-resident witness is exempt, said:

“Also according to the great weight of authority, a non-resident party litigant is exempt or privileged from service of process while in attendance upon the trial of his case and while en route to and from court, and this doctrine is supported by the federal cases.”

In a more recent case, the rule was recognized but exemption was denied because the litigant was not voluntarily within the jurisdiction. There it was said that the rule is designed particularly “to encourage those who are not bound to attend to do so. voluntarily and thus assist the courts in their work.” Greene v. Weatherington, 112 U.S.App.D.C. 241, 244, 301 F.2d 565, 568 (1962).

In summary, it is well established in this jurisdiction that a non-resident party, litigant who voluntarily appears here to. prosecute or defend an action is immune from process while in attendance on the trial of his case unless the action in which-the process is served is sufficiently related to the other action. The sufficiency of such-relationship must depend upon the particular facts of each case.

Turning to the facts in this case it is evident that appellee voluntarily came to this jurisdiction to prosecute his action and while so here was served with process in the second action. The record discloses no relationship between the two cases. Thompson’s action was one for negligence against Levenson. Kendrick’s action was. one against Thompson for the value of legal services. We were told at oral argument that Kendrick’s services were rendered to Thompson in connection with the claim against Levenson prior to the commencement of Thompson’s action through other counsel against Levenson. Even if this be so, the relation of the second action to the first was too remote to bring into play the exception to the rule. The motion to quash service was properly granted.

Affirmed.

1 . The record before us is extremely abbreviated and many of the above stated facts were obtained by examination of the twq original files in the trial court.

2 . See, for example, the discussion of the rule in Korff v. G and G Corporation, 21 N.J. 558, 122 A.2d 889 (1950).

3 . See Annotation, “Immunity from service of process .as affected by relationship between subject matters of litigation" in which process was issued, and litigation which nonresident served was attending.” 84 A.D.R.2d 421.

4 . See, e. g., Engle v. Manchester, 46 App.D.C. 220 (1917); Church v. Church, 50 App.D.C. 239, 270 P.2d 361, 14 A.L.R. 769 (1921); Government of the Dominican Republic v. Roach, 108 U.S.App.D.C. 51, 280 F.2d 59 (1960), cert. denied 364 U.S. 878, 81 S.Ct. 166, 5 L.Ed.2d 101.