
    Sofge v. Lowe. 
    
    (Jackson.
    April Term, 1915.)
    1. PROCESS. Service. Privilege. Parties.
    Suitors, whether plaintiff or defendant,- from a foreign jurisdiction, are exempt from the service of civil process while attending court and for such reasonable time before and after trial as may enable them to go from and return to their homes. (Post, pp. 628-631.)
    Cases cited and approved: Sewanee, etc., Coal Co. v. Williams, 120 Tenn., 339; Bridges v. Sheldon (C. C.), 7 Fed., 44; Brooks /. State, 3 Boyce (Del.), 1.
    Cases cited and distinguished: Holyoke, etc., Co. v. Ambdem (C. C.), 55 Fed., 593; Cronk v. Wheaton, 23 Lancaster Law Rev., 206.
    2. PROCESS. Service. Privilege of parties traveling to and from State of suit.
    Where defendant was served with process in this State while returning from attending as suitor a United States court in Arkansas, his plea of abatement was properly sustained; since a State court, by way of comity and on grounds of public policy, should enforce the privilege of witness or party to suit in .another State to he exempt from service of process while attending court. (Post, pp. 631-636.)
    Cases cited and approved: Tyrone Bank v. Doty, 2 Pa. Dist. R., '558; Hoffman v. Judge of Circuit Court, 113 Mich., 109; Powell v. Pangborn, 161 App. Div., 453; Plimpton v. Winslow (C. C.), 9 Fed., 365; Hollender v. Hall, 13 N. Y. Supp., 758.
    Cases cited and distinguished: Parker v. Marco, 136 N. Y., 585.
    3. PROCESS. Service. Privilege. Parties. Witnesses. Burden of proof.
    The privilege of a party or witness from a foreign jurisdiction exempt from service of process while attending court is invokable only when the person’s sole business in the State of suit is to attend the litigation, the burden being upon him under plea in abatement to establish the fact. (Post, p. 636.)
    Cases cited and approved: Finucane v. Warner, 194 N. Y., 160; Chaffee v. Jones, 19 Pick. (Mass.), 261; Smythe v. Banks, 4 Dali., 329.
    FROM SHELBY.
    Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. — J. P. YottNg, Judge.
    McGhee, LiviNgstoN & Earrarbough and Graves & Pearson, for appellant.
    Marsilliot & Chaudler, for appellee.
    
      
      On the question of exemption of nonresident party from service of civil process while in State in connection with case, see notes in 42 L. R. A. (N. S.), 1101, and L. R. A., 1915A, 694. As to exemption of a defendant brought into a State on extradition proceedings, see note in 46 L. R. A., 711. As to right to serve process in an action against a corporation upon nonresident officer who is within the State as a party or witness, see notes in 24 L. R. A. (N. S.), 276, and 52 L. R. A. (N. S.), 583. As to exemption of nonresident witness from suit, see note in 25 L. R. A., 721., As to privilege of suitor or witness from service of process as affected by route taken or time consumed, see note in 14 L. R. A. (N. S.), 663. And .as to right of nonresident to exemption from service of process while within jurisdiction pursuant to condition of hail bond, see notes in 27 L. R. A. (N. S.), 333 and 51 L. R. A. (N. S.), 328.
    
   Mr. Justice Williams

delivered the opinion of the Court.

Sofge, plaintiff in error in this case, in 1913, brought suit in the United States District Court at Helena," Ark., against Lowe on the same cause of action attempted to be asserted in the pending case. Lowe was and is a resident of the State of Massachusetts, and went from there to Helena to attend a trial of the federal court ease as a suitor and necessary witness in his own behalf.

While returning from that place and while passing through Memphis, Tenn., en route to his home, Lowe was served with process in this suit. He filed his plea in abatement on the ground that he was exempt from the service of snch process while so returning from attendance upon court at Helena, and this plea was sustained by the trial judge. The court of civil appeals has affirmed the judgment of the circuit court, and the case is before us on a petition for certiorari.

The point ^relied on and pressed by appellant Sofge is that the exemption from service of process is confined as to enforcement to the jurisdiction within which was held the court attended by Lowe; that only the courts of Arkansas, into which he was drawn by the Helena litigation, will concern themselves with his protection from the service of process.

The general rule is that suitors, plaintiff or defend- • ant, from a foreign jurisdiction, are exempt from the service of civil process while attending court, and for such reasonable time before and after trial as may enable them to go from and return to their homes. Sewanee, etc., Coal Co. v. Williams, 120 Tenn., 339, 107 S. W., 968; 32 Cyc., 492, 494.

The rule is of ancient origin and is mentioned as early as the reign of Henry VI of England (Tear Book, 20 Henry VI, 10), and the reason underlying it is the proper administration of justice in the protection of the courts and those called to attend them. ’ The privilege of the individual is incidental; the protection of courts of justice is the primary object of the rule. Bridges v. Sheldon (C. C.), 7 Fed., 44; Brooks v. State, 3 Boyce (Del.), 1, 79 Atl., 790, 51 L. R. A. (N. S.), 1126, Ann. Cas., 1915A, 1133, and cases cited.

The question whether such a suitor is entitled while passing through an intermediate State, in going from or returning to his home, to be protected from service in a suit begun therein, has been decided, it seems, in but two cases. In both of these the exemption was denied. The authority of these cases is weakened by the fact thatVn neither was the decision by a court of last resort. 1

The first case was that of Holyoke, etc., Co. v. Ambden (C. C.), 55 Fed., 593, 21 L. R. A., 319, decided by Carpenter, 'District Judge. There Ambden, a citizen of Vermont, was sued in Massachusetts while journeying through that State to attend court in Connecticut. It was there said:

“The second contention of the defendant is that the service of this writ is in violation of the policy of the law which exempts from service parties and witnesses going to and from court,on the business of the court. An examination of the cases shows that it has been held that parties to a suit are exempt from arrest, and in some cases from suit by summons, while within the jurisdiction of the court on the business of the court, and that this exemption has in some eases been extended to witnesses. In none of them, however, has it been held that a party or witness is exempt from service in any other jurisdiction than that in which his attendance as a party or as a witness is required. I cannot see any reason for further extending this rule. It is established by courts to protect their own process and their own suitors, by the assurance that the court in which the party has brought his action, or into which the party has been summoned, . . . will not permit its own process, or that of other courts in the same jurisdiction, in another action, to embarrass the proceedings. It seems to me that evils greater than these sought to-be remedied would arise if the courts of one State should asume so to guard and protect all the other courts in the country. The rule is in derogation of common right, and restrains the plaintiff from suing, lest a greater evil may arise than involved in the temporary suspension of Ms right to bring his demand inte court of justice having jurisdiction to determine it.. The rule therefore ought to be extended with great caution, and to extend it beyond the jurisdiction immediately concerned seems to me to be unnecesssary and mischievous.”

This federal decision was quoted and followed by the court of common pleas of Susquehanna county, Pa.,, in the case of Cronk v. Wheaton, 23 Lancaster Law Rev., 206, 15 Pa. Dist. Rep., 721, where it was said:

“The.researches of diligent counsel have been unable-to find and cite any case in any State in wMch it has. been held that this privilege from arrest or summons. on civil process extends beyond protecting the party or witness in attendance upon a court of the State in which the process issued from which the exemption is claimed. . . .
- “In the case at bar, the defendant was voluntarily in the State of Pennsylvania and county of Susquehanna when he was served with process; he was not here in response to any process of any court of the State of Pennsylvania, or any agreement by the parties in this suit; he came into this State because he found it more convenient in going from his home in Deposit, N. Y., to Binghampton, in New York, and I can see no reason why the fact that his business at Binghampton, in the State of New York, was to attend the courts of the State of New York, should exempt him from service of process in the State of Pennsylvania.”

Notwithstanding these authorities, we are persuaded that the true rule was announced by the trial judge and the court of civil appeals in the instant case.

In cases which have had under consideration the protection of a suitor or witness going from one county in a State to another and subjected to service in a suit in an intermediate county — a closely related point— it has been held that there existed the privilege of exemption. Tyrone Bank v. Doty, 2 Pa. Dist. R., 558, 12 Pa. Co. Ct. R., 287; Hoffman v. Judge of Circuit Court, 113 Mich., 109, 71 N. W., 480, 38 L. R. A., 663, 67 Am. St. Rep., 458.

A State court will, by way of comity, enforce the privilege of a witness or suitor who, while attending a federal court, lias been sued in the State court. Sewanee, etc., Co. v. Williams, supra; Powell v. Pangborn, 161 App. Div., 453, 145 N. Y. Supp., 1073. See, also, Plimpton v. Winslow (C. C.), 9 Fed., 365, 20 Blatchf. 82.

In Parker v. Marco, 136 N. Y., 585, 32 N. E., 989, 20 L. R. A., 45, 32 Am. St. Rep., 770, a defendant residing in South. Carolina, where he had been sued in the federal court, attended an examination of plaintiff’s witness in that cari.se in New York and was there sned. It was held, that he was exempt from process from a State court of New York. The court said:

“At common law a writ of privilege or protection would be granted to the party or witness by the court in which the action was pending, which would be respected by all other courts. We cannot find that the power to issue such a writ has been abrogated by legislation, and it doubtless exists, and the writ may still be granted by courts possessing a common-law jurisdiction; but while the granting of the writ is proper, it is not necessary for the enjoyment of the privilege and the only office it can perform is to afford convenient and authentic notice to those about to do what would be a violation of the privilege, and to set it forth, and command due respect to it. The tendency has ben not to restrict but to enlarge the privilege so as to afford full protection to parties andjvit-nesses. . . .
“In Hollender v. Hall [Sup.], 13 N. Y. Supp., 758, the witness was attending, pursuant to a stipulation before a notary public, to have bis deposition taken in an action pending in the United States District Court for the Southern District of New York, and the special term set aside the service of process upon him, and its decision was affirmed by the general term of the first department. A distinction is sought to- be made between that case and the one at bar, because there the court ih which the action was pending existed within the limits of this State, while here it is a court sitting-in another State. There does not appear to be any sound principle upon which such discrimination can rest. ... A party who is brought here in such a proceeding is, we think, entitled to the same protection without regard to the local jurisdiction of the court in which the action is pending. ’ ’

The privilege of immunity from service rests upon grounds of public policy, and of such policy as it relates to a matter of supreme importance- — the administration of justice. In order that.causes may be fully heard and a just result reached, and that an orderly and unhampered administration of justice may be assured, the law has announced the rule of exemption. If parties to a pending cause, or their witnesses, are liable to be thus sued, they may be intimidated and prevented from complying with the foreign court’s mandate, if actually summoned or subpoenaed, or from attending voluntarily as is their privilege. It is against public pol--> icy to permit them to be deterred by fear of being subjected to suit while attending, or so going or returning;

This principle of public policy is common to Arkansas and Tennessee. Justice, in such connection, is to be conceived of as a tiling integral and not partible by State or jurisdictional lines; all courts must be presumed to interest themselves alike in promoting and keeping unhampered its fair administration. The courts of this State cannot be unconcerned in respect of the embarrassment in that regard to be experienced by the courts of Arkansas if the courts of this and the other States which surround that State deny to suitors and witnesses returning to their homes from her courts this exemption from suit. Of what considerable avail is it that Arkansas extends her own protection, if the other States refuse any exertion of their sovereign power through their courts to the same end?

The courts of this State will see to it that their processes are not used to thus embarrass the administration of justice in a sister State, and we shall expect the courts of other States to rule in reciprocation. Thus, by a species of comity, a common end^will be served. It may be that this -cannot be demanded of us or of other courts, or asked to be extended except by way of that courtesy which is really comity. Reasons of convenience, expediency, and public interest prompt us to announce this doctrine for our State. A liberal interpretation in favor of the privilege is manifested in the authorities, State and federal, and we deem our ruling to be in accord with that trend.

That the doctrine may not be without salutary application we think may be shown by examples: Let it be supposed that a suitor residing in Nashville is called to attend a trial of his canse at Knoxville, and travels over one of the most used lines of transportation by ■way of Chattanooga, which takes him into the States •of Alabama and Georgia. While his journey is a single one and his sole purpose is to reach his destination in this State, and therefore as to intent his is an intrastate journey, is he to be subjected to the hazard of being sued en route in one of these other States ? Let us suppose that at a term of the federal court held at Jonesboro, Ark., sixty-eight miles distant from Memphis, a witness is called to attend from his residence .at Hernando, Miss., twenty-two miles distant from Memphis, and within the 100-mile limit from Jonesbo-ro ; that under compulsion of process the witness makes the journey, and in doing so goes through Memphis as being on the only feasible route, and travels but a very few miles in this State. Is he without protection from adverse suit in our courts while covering that limited distance?

As we see it, the two opinions to the contrary, quoted from above, are unsatisfactory, in that they disregard that sound policy which courts should have in mind for basis in the formulation of precedents. We do not think it.can fairly be said that Lowe was “voluntarily” in this State; he would have gone as “voluntarily” into Missouri had he returned by way of St. Louis. Practically gga^Mng, he was compelled to take one of the two courses.

Under the rule of the two cases referred to, Lowe could have been tolled to Arkansas - by a litigation pitched there, and on arrival have found the suit dismissed. On the return trip to Massachusetts he wonld have been subject to be sued in any one of six States on the same canse of action, and the plaintiff conld elect to pnt him to the hazard in that one of the six States in which the law of procedure or evidence would favor the plaintiff’s recovery. It is not difficult to contemplate a case where the question of liability wonld. turn in plaintiff’s favor upon some such rule applied in a given State along- the route, while a different rule favoring the defendant would be applicable in Arkansas and Massachusetts.

Since the rule is based upon public policy in the protection of the administration of justice, and has been ' extended and liberalized from time to time on that account, the privilege is held not to be invokable unless the person’s sole .business, in .tie .foreign jurisdiction be to attend upon such.litigation. If with that affair other business be intermingled the protection is gone. Further, under his plea in abatement, the burden is on the person sued to establish that his purpose, and only purpose, in the jurisdiction to or jurisdictions through which he was called to go or return was that incident to a particular pending litigation which called him from his home. Finucane v. Warner, 194 N. Y., 160, 86 N. E., 1118; Chaffee v. Jones, 19 Pick. (Mass.), 261; Smythe v. Banks, 4 Dall., 329, 1 L. Ed., 854.

Content as we are with the rulings of the lower courts, the writ of certiorari is denied.  