
    L. L. WINDER v. NICHOLAS D. PENNIMAN
    (Filed 23 February, 1921.)
    Courts — Jurisdiction—Process—Nonresidents—Witnesses—Attachment— Replevy Bond.
    A nonresident who comes into this State for the sole purpose of prosecuting his action in our courts and acting as a witness in his own hehalf, is not subject to civil process, allowing him a reasonable time for coming and going, nor does he voluntarily submit to the jurisdiction of our courts by merely giving a replevy bond in proceedings for his personal baggage which was attached while he was here on that business.
    Appeal by defendant from Allen, J., at January Term, 1921, of PASQUOTANK.
    Tbe defendant was a resident of Maryland, and came to Elizabeth City on 11 February, 1920, to prosecute an action brought by him against Winder, and also as witness in said case, and it is found as a fact that be came for no other purpose; that a few minutes after tbe case against Winder was determined, on said 11 February, 1920, tbe plaintiff in this action (tbe defendant in that) bad a warrant of attachment served upon tbe property of plaintiff, which was found by tbe court to cqnsist of a suit-case and band-bag containing bis wearing apparel, a ledger, an order book, and sales book, which be bad brought for use as evidence in the trial of said ease against Winder. This attachment was served by tbe sheriff on tbe night of 11 February, about 10 o’clock, tbe plaintiff intending to take an early train at 6 :30 tbe next morning for Norfolk, bis most direct route home; be bad arrived in Elizabeth City on tbe day before for tbe sole purpose of said trial, which was completed on that day, and intended to leave on tbe next morning. After tbe attachment was served on bis personal baggage, tbe defendant filed a replevin bond for return of tbe attached property, but not for tbe discharge of tbe attachment, and made no motion to set it aside.
    Thereafter, 13 February, tbe defendant appeared specially by counsel, who moved to strike out tbe return of tbe sheriff, to set aside tbe attachment, and discharge tbe property seized thereunder, and to dismiss tbe action. This motion was refused, and on appeal to tbe judge tbe judgment of tbe clerk was affirmed, and tbe defendant’s motion denied. Appeal by defendant.
    
      Meelcins & McMullan and Thompson & Wilson for plaintiff.
    
    
      Aydlett & Simpson for defendant.
    
   ClaeK, C. J.

“A summons under civil process cannot be served upon nonresidents who come into this State for tbe sole purpose of attending to litigation, either as suitor or witness. Such rule is based upon high considerations of public policy and not upon statutory law, since it is to tbe best interests of tbe public that suitors and witnesses from other states, who cannot be compelled to attend court here, may not be deterred from voluntarily appearing. Tbe exemption of nonresident suitors or witnesses from service of civil process while attending courts in this State covers tbe time of their coming, their stay, and a reasonable time for returning.” Cooper v. Wyman, 122 N. C., 784, where tbe subject is fully discussed; also Brown v. Taylor, 174 N. C., 423.

It is admitted that tbe defendant, a nonresident, was protected from service while in tbe State to attend tbe trial of bis action, and for a reasonable time before and after tbe trial, and that be was preparing to leave immediately after tbe termination of bis cause. But it is contended that be waived bis exemption by giving a bond for tbe release of bis property, and for this tbe plaintiff relies upon Mitchell v. Lumber Co., 169 N. C., 397. We think this case differs from that. In tbe Mitchell case tbe defendant bad property in this State which was not exempt from attachment, and which tbe defendant bad a right to attach, whether tbe defendant was in tbe State or not. Therefore, when tbe defendant came in, gave bond, and secured tbe release of bis property, which was rightfully attached, be submitted himself to tbe jurisdiction of tbe court, but here tbe undertaking was only a replevin bond, and did not ask tbe release of tbe attachment as to any other property of tbe defendant which might be found in this State, and does not bind tbe principal and bis surety to pay any judgment which may be recovered in tbe action. It is merely an engagement to redeliver tbe attached property, or pay tbe value thereof, to tbe sheriff to whom execution upon any judgment obtained by tbe plaintiff might be issued and tbe order authorized tbe sheriff to surrender tbe possession of this property to tbe defendant, but did not dissolve tbe attachment nor withdraw tbe property from tbe lien thereon.

Clearly, therefore,, it has not tbe same effect as a bail bond or an undertaking for tbe discharge of tbe attachment. It does not release tbe lien of tbe attachment, nor stand in tbe place of tbe attached property, and benc.e tbe giving of such an undertaking is not an acknowledgment of tbe jurisdiction of tbe court, or tbe validity of tbe attachment. This view is clearly discussed and stated in Winter v. Packing Co., 51 Oregon, 97; 4 Corpus Juris, 1331, and other cases in tbe notes thereto.

Tbe law to this purport is clearly stated and ably discussed in Larned v. Griffin, 12 Fed., 590, which has been cited with approval in S. c., 28 Fed., 302, 652; 68 do., 441; 73 do., 740; 177 do., 547; 201 do., 1018; 30 Abb. (N. C.), 63; 3 Alaska, 303; 5 do., 88; 61 Ark., 508; 3 Boyce (Del.), 34; S. c., 51 L. R. A. (N. S.), 1132; 6 do., 273; 46 D. C. App., 228; 83 Ga., 291; 21 Ill. App., 112; 51 Kans., 222; 73 Mich., 546; 125 do., 290; S. c., 52 L. R. A., 192; 37 Minn., 468; 111 Mo., 441; 35 Mo. App., 303; 21 Nebraska, 458; 68 N. H., 314; 74 do., 506; 71 do., 214, 215; 136 N. Y., 589; S. c., 20 L. R. A., 46; 46 Okla., 633; S. c., L. R. A., 1916, E. 1172; 17 R. I., 716; S. c., 19 L. R. A., 562; 35 do., 68; 120 Tenn., 343; 87 Wis., 292; 101 do., 432.

Tbe defendant in tbe principal case cited, as in this, was attending court trial, and was there for no other purpose. He was sued and arrested in a civil suit, gave bond, and was released, and tbe Court held that giving tbe bond was not a submission to tbe jurisdiction of tbe court.

This case also differs from Mills v. R. R., 119 N. C., 693, where a nonresident defendant came in and entered a general appearance and filed an answer to tbe merits, which was clearly a submission to tbe jurisdiction. In this case tbe defendant denied tbe right of tbe plaintiff to serve civil process upon him, and although be gave a replevin bond for tbe release of bis personal effects illegally attached, be entered a special appearance before pleading to tbe action, and moved to dismiss because be was entitled to tbe privilege of exemption.

In Hilton v. Can Co., 103 Va., 255, tbe Court says: “It would be a strange construction to bold that a bond given by a debtor to release property from tbe operation of an attachment should have tbe effect of subjecting him to a personal judgment. Every nonresident debtor, if this were so, would be in tbe dilemma of waiving tbe right to release tbe attached property by executing a bond, which would thus subject him to a personal judgment. Tbe property levied on might (as in this case) be of small value as compared to the amount in controversy, but if the principle contended for be true, the penalty of its release by the execution of a bond would be a submission to the jurisdiction of the court.” This will appear most strikingly if instead of an attachment of his personal effects, the person of the defendant had been arrested, and he had given bond for his release that he might return home, or to avoid remaining in jail, until a motion for his release could have been made and argued by counsel.

In 2 R. C. L., p. 875, it is held that, in a majority of the states, by an appearance and pleading to the merits a defendant will be estopped from moving to quash the writ, but he would not be estoj)ped by merely giving bond to release the attached property.

In notes to Butcher v. Leather Co., 12 Anno. Cas., 170, is set out a diversity of decisions as to the effect of giving a statutory bond to dissolve an attachment. In the following states it is held that giving such bond does not bar a motion to quash, i. e., Arkansas, California, Georgia, Idaho, Indiana, Louisiana, New York, Ohio, and South Carolina. In some states the giving of a bond is held to release the attachment, and a motion to quash is unnecessary, and in others it is held that a bond' is a waiver of a motion to quash, but an examination of these latter cases will show that the statutory bond, unlike the bond in this case, was to pay any judgment that might be obtained. Here the bond is, as already stated, merely a replevin bond to secure the release of the personal effects of the defendant, and is in no wise an acknowledgment of the validity of the attachment, and therefore is not a submission to the jurisdiction of the court, which does not follow except when the attachment of property is valid, and such appearance renders the defendant liable to a personal judgment.

If the defendant was exempt, as is unquestioned, from the service of summons, then his books, which were brought to be used as evidence in the case, and his necessary personal effects, such as clothing and the like, were exempt from attachment, because it was necessary for him to have them in attending the trial.

If this were not so, then the privilege would be nugatory. It could not be expected that the defendant would come from his home in Maryland to attend a trial in Elizabeth City without the necessary underclothing and toilet articles for his use. If not entitled to this, then, in the language used by a member of Congress, as set out in the Congressional Record, which therefore must be of sufficient dignity to be used here, a witness or a suitor from another State would be forced to come in light marching order, for as said in the above speech, he would be

“Like tlie poor benighted Hindoo,
Who does the best lie kin do,
And for clothes he makes his skin do.”

We do not expect to reduce the exemption privilege of parties attending courts in this State from abroad to this limitation.

An appeal from a refusal to dismiss an action is not appealable, but “our decisions are to the effect that the refusal to dismiss a warrant of attachment is an appealable order, and unless appealed. from, the questions involved become res judicata.” Hoke, J., in Mitchell v. Lumber Co., 169 N. C., 397, citing Judd v. Mining Co., 120 N. C., 397, and other cases.

Defendant was entitled to have the attachment and the action based thereon dismissed.

Reversed.  