People ex rel. Hess v. Flansburgh — 55 N.Y. St. Rep. 872

Majority

p. 872

The People ex rel. Frederick Hess, Resp’t. v. A. B. Flansburgh, a Justice of the Peace, et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed December 6, 1893.)

Headnote

1. Service—Exemption—Justice’s courts.

A party attending an action on trial at a circuit in a county outside of Ms residence is exempt from the service of process in a justice court action in such county.

3. Same—Prohibition.

"Where such party has been served with such process, a writ of prohibition is the proper remedy.

p. 873

Appeal from order granting a writ of absolute prohibition restraining the defendants from proceeding with an action in the •justice’s court.

Frederick Hess, a resident of Hamilton county, H. Y., was in the city, of Amsterdam on the 20th day of January, 1898, as a party and a witness in his own behalf in an action pending in the circuit court, in which Horace Inman was plaintiff and Frederick Hess was defendant.

At the opening of court on that day at 9 A. M., the attorney for Hess moved the trial of the action.

The attorney for Inman asked that the case be continued until the arrival of the train at 9:30 A. m*, on which the plaintiff Inman was returning from Boston. This was refused, and on motion of the defendant’s attorney the complaint was dismissed with costs and an order to that effect was entered by the clerk.

A short time thereafter, just as Hess left the court room, a summons issued by A. B. Flansburg, a justice of the peace, was served on him in an action wherein Inman was plaintiff and Hess was defendant. On the 24th day of January, 1893, alternative writ of prohibition was issued, restraining the justice and Inman from proceeding in said action in the justice’s court. A return was made to said writ by the defendants, in which they alleged that a writ of prohibition was not the proper remedy and that the service on Hess was proper. • The objections were overruled and an absolute writ granted.

W. Barlow Dunlap, for app’lt; Thomas & A. D. Richardson (Thomas Richardson, of counsel), for resp’t.

It is well settled that a non-resident of the state while here in attendance upon a court as a party or a witness cannot be arrested or served with a process in a civil action. Parker v. Marco 136 N. Y., 585 ; 49 St. Rep., 905 ; Matthews v. Tufts, 87 N. Y., 568 ; Person v. Prior, 66 id., 124.

, There are cases, however, holding that a resident of the state attending as a party or a witness, in a county other than - that in which he lives is not exempt from the service of a summons in a civil action. Frisbie v. Young, 11 Hun, 474 ; Hopkins v. Coburn, 1 Wend., 292 ; Bours v. Tuckerman, 7 Johns., 538 ; Sheldon v. Wakely, 3 Law. Bul., 94; Fletcher v. Franko, 15 N. Y. Supp., 674 .

In the case of Sheldon v. Wakely, supra, although the action was commenced in the Hew York common pleas, a local court, under the provisions of § 278 of the Ciyil Code, the summons, though served in the city of Hew York, could have been served as well on the defendant in his own county, or any other part of the state, and the denial of the motion to set aside the summons seemed to have been placed'upon that ground. In the other authorities above cited the facts were similar. n The defendants in each case, although served out of the counties where they resided, and while in attendance at court, as a party or witness could have been as well served at their several homes or any where within the state.

p. 874

This case is different. Defendant while out of his county, in attendance as a party in an action pending in the supreme court, in Montgomery county, was served with a summons issued by a justice’s court of the latter county. Process from that court could not have been served upon defendant in the county whe$e lie resided. Hence, for the same reasons that prevent a valid service of a summons on a non-resident of the state, while here as a witness or party, the service upon defendant of the summons issued by the justice should not be deemed authorized. The defendant, when served was, as to the justice’s court of Montgomery county, without the jurisdiction of his residence for the purpose of attending court in another jurisdiction. See Parker v. Marco, 136 N. Y., 585 -589 ; 49 St. Rep., 905 .

It was stated by Allen, J., in Person v. Grier, supra, that it was at least doubtful whether any distinction lies as to the service of process between cases of non-residents of the state attending court as parties or witnesses and persons living within the state attending in counties .outside of their residences. The learned judge uses this language: “Whether any distinction should or does in fact exist is at least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attend-court, could be molested with process. Witnesses might be deterred, and parties prevented from attending, and delays might ensue, or injustice be done.” See also, Thorp v. Adams, 33 St. Rep.,797.

Within the principle stated in Person v. Grier, supra, we think that a party attending an action on trial at a circuit in a county outside of his residence is exempt from the service of process in a justice court action in the latter county. See Pritsch v. Schlicht, 5 St. Rep., 871 ; MilesMc v. Cullough, 1 Binney, Pa., 77.

We also think that the writ of prohibition was properly issued. The relator had no other adequate remedy. He could not properly move before the justice to set aside the service of the summons. „ Unless the writ had been issued defendant would- have been compelled to-proceed with the trial before the justice. See Fiero on Special Proceedings, 89 to 94, and cases cited;' Quimbo Appo v. People, 20 N. Y., 540 .

The order should be affirmed, with costs.

Maybam, P. J., and Herrick, J., concur.