Birmingham Dry Goods Co. v. Bledsoe , 113 Ala. 418 ( 1896 )

McCLELLAN, J.

The word “mesne” signifies mid-fdle, intervening, intermediate. — 15 Am. & Eng. Encyc. of Law, p. 386.

Process is the mandate of a court to its officer commanding him to perform certain services within his official cognizance. — 19 Am. & Eng. Encyc. of Law, p. 222. “Mesne process,” strictly speaking, embraces all writs and orders of the court, necessary for the carrying-on of the suit, after it has been instituted, from and after the summons, which is original process, up to, but not including, those writs which are. necessary to secure the benefits of the suit to the successful party, which are “final process.” But in the sense in which the phrase “mesne process” has come to be used, and is used in section 3106 of the Code, it embraces all writs preceding execution, and describes any and all writs except final process.-State v. Ferguson, 31 N. J. L. 291; Arnold v. Chapman, 13 R. I. 586. Rapalje & Lawrence say: “In civil actions, process is of two kinds : (1) Against a defendant,” as a summons or writ of execution. “(2) Process against persons not parties to the action, e. g. process to summon jurors, witnesses, &c.”

It is clear that a subpoena for a witness in an action is “mesne process” within the foregoing definition. That writ is, therefore, within the letter of section 3106 of the Code authorizing summary judgment for failing “to execute summons, attachment, or other mesne process,” &c. It is as essential to the administration of the law that subpoenas should be executed as that summonses and attachments should be executed ; and as necessary in the one case as in the others that the officer should be spurred to diligence by a penalty for the want of it. Subpoenas are, therefore, also within the spirit and intent of the statute ; and the circuit court erred in holding to the contrary.

The judgment is reversed, and a judgment will be here entered overruling the demurrers to the motion for summary judgment.

Reversed, rendered and remanded.