Fisher v. Bouchelle

Fox, Judge:

On September 14, 1949, Shirley Harrison, administrator of the estate of Biddie May Harrison, instituted an action at law against Milford G. Fisher and Mrs. Walter Ham-mack, in the Circuit Court of Kanawha County, seeking a recovery of damages on account .of the death of Biddie May Harrison, allegedly the result of negligence on the part of Fisher in the operation of an automobile by the said Fisher, while acting as the agent and servant of the owner Hammack. On or about the same date, a warrant for the arrest of the said Fisher was issued and served, on a charge of manslaughter, growing out of the alleged negligent operation of the said automobile. Process in such civil action was executed on the said Fisher in the courtroom of the Municipal Court of the City of Charleston while he was' in attendance on said court where a preliminary hearing on the charge of manslaughter lodged against him was to be then had.

The declaration in said law action was filed in said Circuit Court at October Rules, 1949. At November Rules, 1949, Fisher, who will be hereafter designated as petitioner, filed his plea in abatement, duly verified, setting up the fact that process in said action had been served on him while he was appearing in the Municipal Court of the City of Charleston pursuant to an order of that court and subject to a preliminary hearing on the charge of manslaughter aforesaid, which plea craved judgment of the writ and return, and prayed that the same be quashed on the ground that the said service was void. A demurrer to said plea was entered by the plaintiff in said action on November 30, 1949; and on February 16, 1950, an order was entered by the Circuit Court of Kanawha County sustaining the demurrer aforesaid, on the ground that the rule of immunity from service of civil process under the circumstances set up in said plea in abatement should be applied, under present day conditions, only when the immunity is sought by a defendant who is a nonresident of the State, or a nonresident of the county wherein the action is brought. Whereupon, petitioner applied to this Court for a writ of prohibition inhibiting the respondent from further proceeding against the said petitioner on the basis of the allegedly void service of process attempted to be made upon him. On March 6, 1950, we awarded a rule returnable on April 11, following, to show cause why the writ should not be awarded. There was no general appearance in the trial court by the petitioner, such appearances made by special appearances for the filing of the plea in abatement aforesaid.

Code, 53-1-1 provides that:

“The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.”

While the writ will not be awarded in cases where it does not clearly appear that the petitioner is entitled thereto, it goes as a matter of right in cases where a clear showing is made either of the absence of jurisdiction to hear the case, or where the legitimate powers of a trial court are exceeded. Another rule is that a writ of prohibition will not be permitted to be substituted for a writ of error or appeal. In this case, no question is raised as to the propriety of the form of the remedy chosen by the petitioner, and the cases of Morris v. Calhoun, 119 W. Va. 603, 195 S. E. 341, and White Sulphur Springs, Inc. v. Ripley, 124 W. Va. 486, 20 S. E. (2d) 794, would seem to justify the use of the writ in this case. This being true, it is quite clear that the sole question presented in this proceeding is whether the defendant in a civil action is immune from service of a civil process in the county of his residence while attending court as a litigant.

The claimed right to such immunity is based upon a long existing rule, both in England and in this country, that courts will not permit their proceedings to be disturbed by the arrest in a civil case of attorneys, litigants and witnesses. Such immunity was established in the early days in England, has been treated in this country as a part of the common law, and, unless restricted by statute, is in force in this State under the provisions of Article VIII, Section 21, of our Constitution. When we examine the English cases, we find that such immunity was against arrests in civil proceedings, and was enforced under the peculiar conditions which existed in England, one being that the writs of the courts ran throughout the Kingdom, and no question of venue ever arose. The rule was followed in Virginia in the case of Commonwealth v. Ronald, 4 Call. 98 (1786). It was there held that: “Judges, at-tornies, witnesses, and suitors are exempt from arrest in civil suits' during their attendance at court.” And in Richards v. Goodson, 2 Va. Cases 381 (1815), it was held: “A suitor is privileged from arrest by a Ca. Sa. whilst he is attending Court in his own cause; and eundo et redeundo.”

While the early cases in England and in Virginia seem to provide immunity against arrest, there does not seem to have been at that time any such immunity from the service of an ordinary civil process.

We gather from those cases that an arrest of a creditor was the usual step taken to collect a debt, presumably on account of limitations then existing on the right to subject real and personal property to the payment of debts, particularly real estate. All of this has been changed, and now, except in cases provided by Article 7 of Chapter 53 of the Code, arrests in civil cases are not permitted in this State. The extension of the principle of immunity from service of civil process in certain cases seems to have been of comparatively recent development. In Whited v. Phillips, 98 W. Va. 204, 126 S. E. 916, this Court, in the body of the opinion, said:

“Anciently, it would seem, as well as in some of the earlier cases in the States, this rule was limited to exemption of a defendant from arrest, rather than from service of a civil process which did not involve arrest. But, as years went by, the rule was enlarged so as to afford full protection to suitors, witnesses and court officials, from all forms of process, whether in civil or criminal cases. The reasons for the rule have also been enlarged. It is now regarded as the privilege of persons attending court in their several capacities, as well as, the privilege of the court. * * *”

That such immunity does now exist against service of civil process in certain cases is well established by the Whited case, supra, and by Lang, et al. v. Shaw, Judge, etc., 113 W. Va. 628, 169 S. E. 444, wherein it was held:

“A party who is charged with a criminal offense in a county other than that in which he resides, and who was released on his own personal recognizance, and who, in pursuance thereof, appears and answers to the charge on the day set for trial, it is not liable to be served in such county with process in a civil action until after a reasonable time has elapsed to enable him to return home.”

See also Morris v. Calhoun, Judge, 119 W. Va. 603, 195 S. E. 341, where we held:

“A defendant in a civil action cannot be legally served with process therein in a county other than that of his legal residence, when in such county in obedience to legal process' or its equivalent; and while in such county in obedience to a citation of a member of the Department of Public Safety to answer a criminal charge, may not be served with such process so long as the necessity for his presence to answer such charge continues, and a reasonable time thereafter.”

Under the ruling in these cases, it is clear that a nonresident of the county, in which he is required to appear in court, may not be served with process in a civil action in that county while in attendance on such court, and for such reasonable time thereafter as will permit him to return to the county of his residence.

This leaves open the question of whether such immunity exists where a person is required to attend court in the county of his residence. As indicated above, in England process issued from a court whose writs ran throughout the Kingdom, and the question of venue was never presented. In this country a different situation exists. First, because of the federal union of sovereign states, and the limitation of the jurisdiction of the courts of the several states to their own boundaries; and second, because in this State certain statutory rules govern the venue of all suits and actions as clearly set out in Code, 56-1-1 and 2, providing that an action may be brought against a natural person in the county of his residence, or in the county in which the cause of action arose; but in the latter instance, the .defendant, or if more than one defendant, one or more defendants, shall be served with process or notice commencing such action, suit or proceeding, in the county where the cause of action arose. In the case at bar, it is quite clear that if petitioner had been a resident of some county other than Kanawha, the county in which the cause of action arose, and was compelled to appear to answer a criminal action in Kanawha County, or even as a witness in a civil case, he would be immune from the service of civil process while in attendance on court. But in this case, admittedly, petitioner was a resident of Kanawha County, the county in which the cause of action arose.

We are impressed with the view that in no case decided by this Court has it ever been held or intimated that the immunity exists in favor of a defendant in a civil action where he is served with process in the county of his residence. It will be noted in the Lang case, supra, that the holding is based on a situation where there is “A party who is charged with a criminal offense in a county other than that in which he resides * * In the Morris case, supra, it was held “A defendant in a civil action cannot be legally served with process therein in a county other than that of his legal residence.” This indicates to us that this Court has never considered the immunity as existing where the service of process could be had in the county in which the defendant resided. Another reason in support of this view is the fact that under our statutes personal service of process or notice is not necessary as other methods of securing service of process on which a personal judgment or decree may be obtained are provided for. Code, 56-2-1 and Code, 56-3-12. No one, we think, would contend that service of process could not have been had on petitioner by delivering the process at his usual place of abode, or by posting at his usual place of abode, by the methods provided by statute; nor do we think it will be contended that process could not have been served on the petitioner in this case in the county of his residence at any time after he left the presence of the Municipal Court of the City of Charleston. The rule favoring immunity, as now established in this State, being a development and expansion of the ancient rule against arrest in civil cases, should not be interpreted to protect a defendant in his own county from the service of civil process. The rule as it was originally followed in England, and to some extent in this country, and which should ordinarily be applied at this date in a proper case, was a rule against arrest in civil cases, which naturally tended to interfere with the processes of the courts, and obstruct justice, whereas the service of civil process cannot be said to have that effect. The rule should be reasonably adjusted to conform to modern practices and usages, and we are unable to see how the processes of courts, as they are now operated, are interfered with, or the administration of justice obstructed by the service of process in a civil case on a resident of the county in which the court is sitting. The rule of immunity which protects defendants from service of civil process while attending courts as litigant or witness should be applied to those cases where, but for the requirement of attendance on court the defendant, a nonresident, would not be required to come into the State, or a defendant residing in another county would not be required to come into the county where the cause of action arose, and thereby be able to avoid the service of process in the county in which the cause of action arose.

In State ex rel. Godby v. Chambers, Judge, 130 W. Va. 115, 42 S. E. (2d) 255, we held that a person brought in from another county and placed in jail was not immune from the service of civil process while serving a term of imprisonment, but it was stated in that case that the reasons for the immunity rule did not apply after conviction and sentence.

The views we express are, in our opinion, sustained by general authority. In 50 C. J. 551, it is stated:

“In the absence of statute otherwise providing, witnesses and suitors attending court in counties of their residence are not entitled to imnriunity from service of civil process.”

In the case of Case v. Rorabacher, 15 Mich. 537, (1867), it was held:

“There is no general exemption from the service of process without arrest, merely because a party is attending court awaiting the trial of a case.”

The question is discussed at length in 42 Am. Jur. 115-135, Process, Sections 135 to 156, both inclusive. As we view it, the entire discussion is apparently based upon situations where attorneys, witnesses and litigants are brought into court from another county or from another state. Nowhere in that discussion is there an intimation that the immunity exists where the process is served in the county of a defendant’s residence. Apparently it has not been considered that such immunity could exist where a defendant is served with civil process in the county of his residence, and we are not disposed to extend the immunity to cover such cases. In our opinion, a defendant is always subject to service of a civil process in the county of his residence, where the cause of action arises in that county as in the case at bar.

For the foregoing reasons, we are of the opinion to deny the writ.

.Writ denied.