Goldsmith v. Haskell

The defendant moved to set aside the service óf an order of arrest and a summons and complaint made upon him in behalf of plaintiffs on the 26th day of .March, 1907, at the city of New York, on the ground that he was a nonresident of the state, and on that day was in this state attending as a party and witness in involuntary bankruptcy proceedings instituted against himself. Such motion was denied, and the appeal is from the order entered thereon.

If the defendant was in fact in attendance on the bankruptcy proceedings as a party or a witness, and was ordered to so attend, he was privileged from arrest in a civil action. Section 860 of the Code ot Civil Procedure provides:

“A person duly and in good faith subpoenaed or ordered to attend for the purpose of being examined, in a case where his attendance may lawfully be enforced by attachment, or by commitment, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and returning from the place where he is required to attend.”

We are also of the opinion that the defendant established that he was a resident of the city of Philadelphia, in the state of Pennsylvania, and that the service of the summons upon him should also have been set aside. The defendant had been a resident of the city of New York and his wife’s father and mother lived in the city of Philadelphia. In the latter part of January, 1907,"the wife’s mother died, and the proof showed that about the 1st of February following the defendant moved his wife and child and his household belongings to that city and took up his residence with his father-in-law. This is established by his own affidavit and that of his father-in-law, and the janitress and occupants of the apartment in which he formerly resided in this city. This situation is not controverted, except by the fact that defendant had been a resident of this state, and that after his claimed removal to Philadelphia he had been seen frequently in the city of New York. His business was that of traveling salesman for a firm having headquarters in the latter city, and the fact that he was at the place of business of his employer did not necessarily prove that his actual residence was not in another state. There was some confusion respecting the name of the street which defendant gave as

Immediately upon his arrest defendant obtained a writ of habeas corpus in the United States District Court, asking for his discharge on the ground that the protection accorded him by section nine of the bankruptcy act had been violated. Act July 1, 1898, 30 Stat. 549 , c. 541 [U. S. Comp. St. 1901, p. 3425]. That court dismissed the writ, and the respondents urge that such determination is res adjudicata and a bar to this motion subsequently made in the state court. Conceding that a final order made upon a writ of habeas corpus is a final adjudication respecting the cause and right of detention, the refusal of the federal court to discharge in the present instance had no such effect. The Supreme Court of thb state has the right to determine the propriety and regularity of the service of its own process. The only question before the federal court was whether or not the bankruptcy law had been violated. The question now for determination is whether or not the law of the state has been violated by improper service of process issued out of the state court. That a determination that process was improperly served has the effect of releasing the defendant from custody is unimportant. Besides, the federal court had no jurisdiction certainly to determine whether or not the summons was properly served; and, if service of the summons be set aside, the order of arrest must fall by operation of law, because such an order can be issued only in an action, and cannot stand if such action was never legally begun.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.