State ex rel. Gunn v. Superior Court , 111 Wash. 187 ( 1920 )

Mackintosh, J.

On February 1, 1918, a complaint was filed in the superior court of King county, seeking damages against the relator here for personal injuries alleged to have been suffered by the plaintiff. At that time, and at all times thereafter, the relator was not a resident of the state of Washington, but was and is a resident of the state of Nevada. On March 27, 1919, the action was brought on for trial, and the relator was present, having come to the city of Seattle from Nevada for the purpose of being present at the trial and defending the action. When the case was called for trial, the plaintiff dismissed her suit, and before the relator could leave the courthouse in which the court was sitting, a complaint was filed against her in an action seeking damages upon the same state of facts alleged in the original case just dismissed, and service was made upon the relator. Thereafter the relator entered her special appearance in this second action and asked the court to quash the attempted service of the complaint for the reason that she was privileged from such service and from being sued within the state of Washington, for the reason that she was within the state at the time of the alleged service as a party in an action of law then pending in the superior court of King county, and that she was present in the state solely to defend herself against such action. After argument, the motion to quash was denied, and the relator then commenced this action in this court, seeking a writ of prohibition directed to the superior court of King county, restraining it from proceeding further in the cause.

The sole question for determination is: Can a nonresident litigant, who comes to this state solely to defend a suit in which he is named as defendant, be served with process in a new suit while temporarily within this state? The action from the prosecution of which the relator seeks to escape is a civil action and a transitory one. The question is for the first time presented to this court, although it has been before the Federal courts and the courts of a majority of the states upon many occasions, and has resulted in the adoption of majority and minority rules. We have no statute bearing upon the question. We axe not concerned here with the privilege existing in criminal actions, nor the privilege of witnesses, nor the privilege of parties to civil actions who are residents of this state. The majority rule is that a nonresident of a state is privileged from the service of process in a new suit while he is temporarily in the state defending a suit then pending. This rule is founded upon the common law rule which granted the privilege to witnesses and parties in attendance upon the courts. This rule was, as the authorities state, primarily adopted for the purpose of preventing inconvenience to the courts and tó facilitate the orderly and unhampered trial of causes. Witnesses, by the service of subpoenas, were compelled to attend court, and parties, although not under the same compulsion, were under a like compulsion, arising from the necessity of their being present in order to freely protect their interests which were at stake in the litigation. It was felt, and the rule was established to carry that feeling into effect, that witnesses and parties should be.free to attend and to leave the court without having the work of the court embarrassed and interfered with by the service of civil process during their attendance. That freedom from service of process will be found to be referred to in the early cases as freedom from arrest, for the reason that, at the common law, the mode of process in civil actions had grown up as an arrest of the person. But the fact that it was a physical arrest is not determinative of the extent of the privilege, for the reason that arrest was the only means by which civil process could be served, and the rule was not established because the service happened to take that form, but for the underlying reason we have indicated—that it facilitated the work of the courts.

Stress is laid by the courts adhering to the minority rule upon the fact that the common law rule referred to freedom from arrest. But when we bear in mind that that was the only form of civil process, and the further fact that the arrest in civil cases, at common law, soon developed into nothing more than a formality, the person upon whom civil process was served not being actually taken into custody, and being allowed, as a matter of right, to furnish bail, which consisted of his personal recognizance, so that no physical detention accompanied the arrest, which remained an arrest only in name and not in fact, we will see that the minority courts are basing their reasoning upon words, forgetting the substance. Those who criticize the majority rule lose sight of the underlying principle which gave rise to it and argue that the rule having originated when arrest of the person gave the court jurisdiction in civil cases, that now, such process being obsolete, the rule should be annulled. They mistake the early application of the rule for the reason of the rule.

It is not necessary to further discuss the origin and development of the common law upon this subject, but content ourselves with the statement of the fundamental idea on which the common law rule rested. At common law, witnesses and parties were privileged from the service of the then existing means of summons in civil actions during the time they were in attendance upon the court.

A review of the decided cases would extend this opinion to an unpardonable length and would reveal that the eminent judges of the various Federal courts and the supreme court itself, and the overwhelming majority of the state courts, are committed to the rule established at common law, and that only a small minority of the state courts adhere to the contrary doctrine. We are content to follow the majority rule, not only because of its overwhelming endorsement by the courts and the eminent jurists who have given it their sanction, but as well because it is founded 'upon a reason which originally was sound, and which time has not altered. As Judge Cooley says, in Mitchell v. Huron County Circuit Judge, 53 Mich. 541, 19 N. W. 176:

“Public policy, the due administration of justice, and protection of parties and witnesses alike demand it. There would be no question about it if the suit had been commenced by arrest; but the reasons for exemption are applicable, though with somewhat less force, in other cases also.”

In Wilson Sewing Machine Co. v. Wilson, 22 Fed. 803, it is said:

“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 nonresident 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.”

To those who may be interested in an examination of the decisions, the following may be cited as cases in conformity with the ruling here made, holding that the privilege extends equally to exemption from the service of summons as to exemption from arrest: Stewart v. Ramsey, 242 U. S. 128; Hale v. Wharton, 73 Fed. 739; Parker v. Hotchkiss, 1 Wall. Jr. 269 (Fed. Cas. 10,739); Wilson Sewing Machine Co. v. Wilson, supra; Brooks v. Farwell, 4 Fed. 166; Juneau Bank v. McSpedan, 5 Biss. 64 (Fed. Cas. 7,582); Small v. Montgomery, 23 Fed. 707; Kinnie v. Lant, 68 Fed. 436; Mechanical Appliance Co. v. Castleman, 215 U. S. 437; Cain v. Commercial Pub. Co., 232 U. S. 124; Atchison v. Morris, 11 Fed. 582; Nichols v. Horton, 14 Fed. 327; Morrow v. Dudley, 144 Fed. 441; Bridges v. Sheldon, 7 Fed. 17; Lyell v. Goodwin, 4 McLean (U. S. Cir. Ct.) 29; Peet v. Fowler, 170 Fed. 618; Kaufman v. Garner, 173 Fed. 550; Skinner & Mounce Co. v. Waite, 155 Fed. 828; Roschynialski v. Hale, 201 Fed. 1017; Lardned v. Griffin, 12 Fed. 590; In re Healey, 53 Vt. 694, 38 Am. Rep. 713; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Halsey v. State, 4 N. J. L. 369; Brown v. Getchell, 11 Mass. 11; Andrews v. Lembeck, 46 Ohio St. 38, 18 N. E. 483, 15 Am. St. 547; Roberts v. Thompson, 134 N. Y. Supp. 363, 149 App. Div. 437; Brooks v. State ex rel. Richards, 3 Boyce (Del.) 1, 79 Atl. 790; Smith v. Alabama, 124 U. S. 465; Richardson v. Smith, 74 N. J. L. 111, 65 Atl. 162; Matthews v. Tufts, 87 N. Y. 568; Mitchell v. Huron County Circuit Judge, supra; Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 10 Am. St. 48, 3 L. R. A. 266; First Nat. Bank v. Ames, 39 Minn. 179, 39 N. W. 308; Linton v. Cooper, 54 Neb. 438, 74 N. W. 842, 69 Am. St. 727; Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108; Murray v. Wilcox, 122 Iowa 188, 97 N. W. 1087, 101 Am. St. 263, 64 L. R. A. 534; Martin v. Bacon, 76 Ark. 158, 88 S. W. 863, 113 Am. St. 81; Long v. Hawken, 114 Md. 234, 79 Atl. 190, 42 L. R. A. (N. S.) 1101; Dungan v. Miller, 37 N. J. L. 182; Massey v. Colville, 45 N. J. L. 119, 46 Am. Rep. 754; Miles v. McCullough, 1 Binn. (Pa.) 77; Palmer v. Rowan, 21 Neb. 452, 32 N. W. 210, 59 Am. Rep. 844; Hayes v. Shields, 2 Yeates (Pa.) 221; Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947, 65 Am. St. 731; Cameron v. Roberts, 87 Wis. 291, 58 N. W. 376, 41 Am. St. 43; Starret’s Case, 1 Dallas (Pa.) 355; Persse v. Persse, 5 H. L. Cas. 671; Parker v. Marco, 136 N. Y. 585, 32 N. E. 989, 32 Am. St. 770, 20 L. R. A. 45; United States v. Edme, 9 Serg. & R. (Pa.) 147; Norris v. Beach, 2 Johns. (N. Y.) *294; Sanford v. Chase, 3 Cow. (N. Y.) 381; Henegar v. Spangler, 29 Ga. 217; Ballinger v. Elliott, 72 N. C. 594; Arding v. Flower, 8 Term. Rep. (K. B.) 534; Newton v. Askew, 6 Hare (Ch.) 319; Tribune Ass’n v. Sleaman, 12 N. Y. Civ. Proc. 20; Fisk v. Westover, 4 S. D. 233, 55 N. W. 961, 46 Am. St. 780; Minnich v. Packard, 42 Ind. App. 371, 85 N. E. 787; Tory v. Bast, 3 W. V. C. 63.

The minority rule is supported by the following authorities: Baldwin v. Emerson, 16 R. I. 304, 15 Atl. 83, 27 Am. St. 741; Ellis v. Degarmo, 17 R. I. 715, 24 Atl. 579, 19 L. R. A. 560; Bishop v. Vose, 27 Conn. 1; Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. 726; Guynn v. McDaneld, 4 Ida. 605, 43 Pac. 74, 95 Am. St. 158; Greer v. Young, 120 Ill. 184, 11 N. E. 167; Lewis v. Miller, 115 Ky. 623, 74 S. W. 691.

The rule we follow in this case in no wise conflicts with the general rule that a nonresident temporarily within a state hut not in attendance upon court may he served with civil process and he subjected to the jurisdiction of the courts of that state.

The writ will issue.

Fullerton, Main, Mount, and Bridges, JJ., concur.