Wilson Sewing Machine Co. v. Wilson

22 F. 803, 51 Conn. 595

• Court: U.S. Circuit Court for the District of Connecticut
• Decided: December 15, 1884
• Status: Published

Opinion

Shipman, J.

This is a plea in abatement upon the general ground that the complaint was not legally served.

The plaintiff is a citizen of Connecticut and the defendant is a citizen.of the state of Illinois. On March 19th, 1884, four actions at law were assigned for trial in this court, one being in favor of F. H. Alford against the present defendant, and three being upon endorsed promissory notes in favor of the endorsee, the First National Bank of Chicago, against the makers, said Alford and Charles Dickinson. The defendant was an endorser_ upon each of the notes.

In the case in which Alford was plaintiff, the defendant was the important witness in his own behalf, and his personal presence was necessary for the instruction of his counsel. He came from Chicago to Hartford, on March 18th, expressly to attend the trial of his case. The attorney for the bank had notified his client that it was necessary to be prepared to prove that it became the owner of the notes before maturity. Wilson knew the date when the notes were discounted, and being here upon his own case was ready and prepared to be used as a witness in the bank cases. He was in fact called by the defendants.

The trial of Alford against Wilson commenced on March 19th, and was finished on March 27th. On March 20th, and before the defendant had been called as a witness, the complaint in this case was served upon him in the court house at Hartford by summons. No attachment was ever made.

Disregarding the fact that the defendant was in attendance in readiness to be used as a witness in the bank cases,' the question is:' — Is a non-resident defendant in attendance upon the trial of his case, at which trial his presence is necessary, both as a witness and for the purpose of instructing his counsel, protected, while in such attendance, from service by summons of a new writ in a complaint against him?

It is not denied that non-resident parties and witnesses, while in attendance upon the trial of causes with which they are connected, are privileged from arrest on civil process. The contention upon this plea is, whether a nonresident ' defendant and witness is protected from service of a new writ by summons.

Upon principle, the- answer should be in the affirmative. It is important to the administration of justice that each party to- a suit should have a free and untrammeled opportunity to present his case, and that non-resident defendants should not be deterred, by the fear of being harassed or burdened with new suits in a foreign state, from presenting themselves in such state to testify in their own behalf or to defend their property. The inconvenience to which plaintiffs are subjected by being compelled to sue defendants in the state of which they are citizens, is not so great as to 'justify the allowance of obstructions by means of legal proceedings which will preclude non-resident suitors from giving free and unrestricted attention to their cases when they are on trial. Public policy requires that the entrance of such suitors to the court room shall not be impeded.

The authorities upon the general question of the protection of non-resident parties and witnesses from the service of process, while they are in attendance upon the trial of cases in which they are concerned, are very numerous and were collected in the defendant’s brief. It is sufficient to cite only those which bear upon the precise point in the case, and which are — Matthews v. Tufts, 87 N. York, 568; Parker v. Hotchkiss, 1 Wall. Jr., 269; Lycee v. Goodwin, 4 McLean, 29; Halsey v. Stewart, 1 Southard, 366; Miles v. McCullough, 1 Binney, 77.

The decision is confined to the case of a non-resident defendant, because the Supreme Court of Connecticut held, in Bishop v. Vose, 27 Conn., 1, that a non-resident plaintiff was not protected while in attendance upon the trial of his case in this state from the service of a new writ by summons. There is,-perhaps, a reason why a plaintiff who has voluntarily sought the aid and protection of our courts should not shrink from- being subjected to ’their control, which does not apply to the condition of a defendant whose attendance is compulsory; and therefore I do'not intend to .express dissent from the doctrine of the Connecticut case, but to limit this decision to the facts which are before me.

W. C. Case and L. M. Hubbard, for the plaintiffs. A. P. Hyde and H. C. Robinson, for the defendant.

The plea in abatement is sustained.