
    Edward A. McIntire, Administrator, Appellant, vs. Charles McIntire.
    Law.
    No. 26,788.
    Decided December 17, 1886.
    The Chief Justice and Justice Cox sitting.
    Service of process, to appear and defend a suit commenced against Mm, was made upon a non-resident wMle present in the court house, he having come there from abroad in order to be a looker-on during the hearing of a certain judicial proceeding there and then pending. Held, on motion to set aside the process, that the circumstances afforded no immunity from such service.
    Appeal from an order setting aside service of a writ of summons.
    This was a motion to set aside the marshal’s service of the writ of summons against the defendant in the above case, which was a suit upon a promissory note for $215, dated July 2, 1854, and payable twelve months after date. The grounds being that tbe service was made upon tbe defendant while he was within the jurisdiction of this court solely for the purpose of attending as a suitor a session of the Orphans’ Court, in a matter actually pending and under hearing on the day of the alleged service.
    The material averments of the defendant’s affidavit, made in support of the motion, were that he is a native of the State of Pennsylvania and a resident of Easton, in that State. That on March 12, 1886, he was temporarily in Washington, solely for the purpose of attending a session of the Orphans’ Court, wherein was pending a proceeding in affiant’s behalf, as a suitor in said court touching the estate of David Mclntire, deceased. That said motion having been partially heard and continued to another day, and while said court was still in session, and within the court house building, defendant was subjected to the alleged service of process.
    The plaintiff in opposing the motion, filed his counter-affidavit, the substance of which was that the “proceeding” referred to in the defendant’s affidavit as pending in the Orphan’s Court, on March 12, 1886, was a motion filed by Charles Mclntire, Jr., who claimed an interest in the estate of David Mclntire as a legatee under his will; that motion being as follows: “And now comes Charles Mclntire, Jr., by James M. Johnston, his attorney, and moves the court:
    “1. To vacate and set aside the order passed herein upon the petition of Sarah Mclntire and others, on the 5th day of March, 1886, and to direct the repayment into the registry of the funds belonging to said estate and under the control of said court and by virtue of said order.
    “ 2. And further to order and direct that Edwin A. Mclntire do forthwith pay into the registry of this court the sum of $10,000, part of the assets of the estate of said David Mclntire, deceased.
    “James M. Johnston.”
    “ To S. S. PIenkle, Esq.,
    “Solicitor for E. A. Mclntire et al.
    “Please take notice that on Friday next, March 12, 1886, at 11 a. m., or as soon thereafter as counsel can be heard, I shall call up the above motion for the action of the court thereon.
    “James M. Johnston.”
    He denied that the defendant, Charles Mclntire, sr., was in any way interested in this motion, and averred that the said defendant had filed a petition for the purpose of revoking the probate and contesting the will; nor was the defendant a legatee under said will, but on the contrary claimed adversely to it as an heir at law of David McIntire, deceased; and that the personal presence of the defendant was in no way necessary to the hearing of said motion.
    The court below set aside the service, and from that ruling this appeal was taken.
    S. S. Hbnkle for appellant:
    The defendant was not a party to the motion which was to have been heard March 12, 1886, in the Orphans’ Court. He was trying to contest the will as an heir at law. The motion was by Charles McIntire, Jr., who claimed as a legatee under the will and under a decree of the equity court, made upon assumption that the will was valid. He had no interest in the motion, nor right to be heard or represented in the hearing of it.
    He was not entitled to be heard or represented in any matter affecting the estate of David McIntire, save only that relating to the contest of the will.
    The defendant was not in attendance upon the court as a witness, nor was testimony to be taken or heard upon hearing of said motion.
    Being neither a party nor a witness, the defendant was not entitled to exemption from service of civil process.
    Under the English practice and the earlier practice in the United States a party to the record, in necessary attendance upon the court during the hearing of his case, was privileged from arrest, but not from service of summons.
    In Poole v. Gould, 1 Hurlst. & N. 99, the court overruled a motion to set aside a service upon the ground that it was irregular. The irregularity was that the defendant was served with a summons while attending in the court under a subpoena to give evidence in a case in which he was defendant.
    Cole vs. Hawkins, 2 Str., 1094, was a motion to attach the' attorney for contempt for serving a bill of Middlesex in the presence of the court, while he was attending the sitting of the court in a case where he was the defendant; it was held to be a contempt upon the part of the attorney, but there is no intimation that the service was bad.
    .In Randall vs. G-uerner, 1 Chitty, K. B., 679, the court refused to discharge a party on common bail who had been arrested while assorting his papers in company with his attorney en route to the place of trial.
    In Massey vs. Colville, 45 N. J. L,, 120, the court says (after treating of the freedom from arrest):
    
      “ The same freedom has been claimed from liability to be served with summons, and the claim has in some instances been allowed. This claim has no countenance in the English practice. The service of a summons there may be made at any time, and the court will not set it aside. This is so, although the service of the writ in open court may be so indecorous as to amount to a contempt.”
    In Atkinson vs. Eraser, 5 Rich. Law, 521, the court says: “ The privilege of a party attending on his case in court does not extend beyond the exemption of his person from arrest. If he is arrested on process he can only claim to be discharged from custody; and if he has given bail, that the bail should be cancelled.
    Schlessinger vs. Foxwell, 1 City Ct. Rep., 461, note, held that the privilege of exemption from the service of process while in attendance upon court extends only to witnesses, and not to parties whose privilege is only from arrest.
    In Jenkins vs. Smith, 57 How. Pr., 173, the court says: “I can find no case where a suitor has been protected from the ordinary civil process. In a number of cases where the party was arrested, upon motion to set aside the order of arrest, the motion has been granted upon the entry of common bail, thus leaving the party as effectually served with process as if served with the ordinary summons.”
    In Blight vs. Fisher, Peters, C. C., 41, 42, motion to dismiss suit and for attachment for contempt for serving summons on defendants while they were in attendance upon court in a suit in which they were plaintiffs, Washington, J., said: “The service of process in the actual or constructive presence of the courtis a contempt for which the officer may be punished. But the privilege of a witness or suitor extends only to an exemption from arrest;”
    In Brookraem vs. Wheeler, 12 Vt., 311, there was a plea in abatement that the defendant was arrested while attending court as a witness. The court says: “It has never been held that a man’s property may not be attached or he served by a summons while attending court as a witness or a suitor.” In Page vs. Randall, 6 Gal., 32, and Le Grand vs. Bedinger, 4 Mon., 539, it was held that the privilege of a witness only extends to exemption from arrest.
    In Hunter vs. Cleveland, 1 Brev., (S. C.) 167, the defendant was attending court as a suitor when he was arrested on a civil process and held to bail. On motion the court discharged the arrest and bail, but held the service good.
    To the same effect are Bours vs. Tuckerman, 7 Johns., 538; Bishop vs. Yose, 27 Conn., 1; Case vs. Rorabacher, 15 Mich., 537; II. S. vs. Bridgeman, 9 Biss., 223; Ex parte M’Neil, 6 Mass., 264. This lastcase was a motion for a habeas corpus for a party who was attending court as a witness under a writ of protection, when arrested. The court decided that as he was not under process, but attending voluntarily as a witness for his father, he was not entitled to protection.
    Wilder vs. Welsh, 1 Mac Arthur, 566, was a motion to set aside the service on the ground that the defendant was a witness from one of the States in attendance upon a Congressional committee under a subpoena. The court unanimously held that the privilege of a witness before Congre ss, stands on the same' footing as the privilege of members, and this does not extend to freedom from the service of a simple summons, but only from arrest.
    In is not denied that quite a number of late cases may be found in which it is held that a party or a witness is not only exempt from arrest but also from service of summons while in actual attendance upon court under subpoena in the ease of a witness, and necessary attendance upon the trial of his case or the taking of testimony in the case of a party, and while in going to and returning from court; but I thing that reason and the weight of authority is decidedly the other way, and the case of Wilder vs. Welch, supra, settled the law in this District against the exemption.
    But no case can be found, early or late, in which it has been held that a person who is neither a witness nor a party, but who is in attendance upon court as a matter of curiosity, or because he may in some uncertain contingency be interested in the subject matter of the litigation, has been held to be exempt either from arrest or service of summons.
    In this case there was no possible need of the presence of the defendant, even if he had been a party, as the case was to be heard solely on the motion papers.
    James M. Johnston for appellee:
    While there are one or two cases confining the privilege to cases of arrest, the decided weight of authority, in both State and Federal courts, exempts the party from liability to simple service of summons. Parker vs. Hotchkiss, 1 Wall., Jr., 269 ; Larner vs. Griffin, 12 Fed. Rep., 594; Miles vs. McCullough, 1 Binney, 77; Hayes vs. Shields, 2 Yeates, 222; Lyell vs. Goodwin, 4 McLean, 29; Juneau Bank vs. McSpedan, 5 Biss., 64; Merrick vs. Giddings, Mac A. & Mack., 65, 66.
    The defendant was a party to said proceedings, for, as , shown by the record, he is one of the next of kin of said David McIntire, and as such, his rights are affected by any order touching the disposition of the assets of the estate. The proceeding in the Orphans’ Court is a proceeding in ■rem, and all interested are parties. He was a party interested, and had all the rights of a party to the record. Grignon’s Lessee vs. Astor, 2 How., 319; Cecil vs. Cecil, 19 Md., 79, 80; Cecil vs. Harrington, 18 Md., 512.
    Moreover, the privilege is not restricted to parties to the record, but extends to all who are properly in attendance upon the court, as parties interested, counsel, judges, etc. Parker vs. Hotchkiss, 1 Wall., Jr., 273; Lyell vs. Goodwin, 4 McLean, 29.
    The privilege is not affected by the fact that the presence of the party is not necessary to the proper conduct of the proceedings, but goes to the propriety of his presence. McNeil’s Case, 6 Mass, 245, 246.
   Mr. Chief Justice Cartter

delivered the opinion of the court.

The motion to quash this summons is predicated on the exemption of the defendant, under the circumstances set forth in the record, from the service of the summons — a summons which is, in brief, but a notice to appear and plead or suffer the penalty of a judgment by default. The question is, whether there is any such immunity or privilege. Undoubtedly the courts have held that a man may not be arrested while in attendance upon a court as a witness or as a party, and for the reason that it affects the integrity of the administration of justice ¿ and in the protection of that integrity, the courts have ordained that no man in attendance upon its deliberations shall be interfered with, or the administration of justice interrupted by the service of process. But that doctrine, which is- all well enough, had its origin in those cases where the process is one of arrest.

There are, however, it seems some jurisdictions — not many, and all of them halting — which extend this rule to the service of a mere summons to appear and defend.

Now personal actions are, as we know, actions of a transitory character. They follow the party wherever he is to be found. There is no immunity from the service of process because the party is only temporarily within the jurisdiction-of the court. Whether this be right or wrong is another question. Experience, however, has shown its utility, and to abolish the rule would be to abolish transitory actions altogether. The interruption to the administration of justice by the service of process is another thing, and one for which there is a remedy. And the courts have said that the court room, during a pending trial, is neither the place nor time to serve a litigant or even his witnesses with process of summons.

But what is the case here ? The defendant says that he was in attendance upon the Probate Court. But he has not shown that he was a party to the proceeding pending there. He was not a devisee in the will. On the contrary, he claimed to be an enemy to the will. So that without being a party to the investigation pending, without being interested in it except as an antagonist, a mere observer from the outside of the deliberations that were going on, he claims exemption from process.

We thinlc there is no rule which requires the protection of the dignity of the administration of justice to be extended to such a case. There may be good and pertinent reasons for protecting a party or a witness from arrest, but there is neither rhyme nor reason in the claim of a mere looker-on for an exemption from the service of a summons because he happens to.be somewhere about the court house.

It is a doctrine that under the Constitution of the United States and the high privilege of legislative members of the Government, they shall be secure against interference with the discharge of their functions by exemption from arrest; but that is as far as the law goes, and this court has held upon more than one occasion that they are exempt no further than that. To extend immunity to this defendant would be going further than under the Constitution the privilege of a legislator is carried in protecting him.

This is the view we take of this matter, and we shall have to reverse the decision below and restore this process.  