
    ARREST — GENERAL ASSEMBLY — PROCESS.
    [Lucas (6th) Circuit Court,
    November 20, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Minnie Walsh v. Daniel M. Mooney.
    Privilege Exempting Members of General Assembly From Service of Summons in County Other Than That of Residence Is Available to a Member as to Cause Accruing Ten Days Before Session Opens.
    A member of the general assembly , by virtue of R. S. 5031, 5457 (Gen. Code 11278, 11754), is exempt from service of summons in a county other than that of his residence, during the sessions of the assembly and the time usually occupied in traveling to and from such sessions, where the cause of action accrued ten days before the opening of the session.
    Error to common pleas court.
    
      Hamilton & Kirby, for plaintiff in error:
    Cited and commented upon the following authorities: Berlet v. Weary, 67 Neb. 75 [93 N. W. Rep. 238; 60 L. R. A. 609; 108 Am. St. Rep. 616]; Rhodes v. Walsh, 55 Minn. 542 [57 N. W. Re’p. 212; 23 L. R. A. 632] ; Johmon v. Offult, 61 Ky. (4 Mete.) 19; Catlett v. Morion, 14 Ky. (4 Lift.) 122; Gentry v. Griffith, 27 Tex. 461; Merrick v. Giddings, lVIacAr. & M. (11 D. C.) 55; Howard v. Bank, 12 App. Cas. ,(D. C.) 222; Orth v. McCook, 2 Dec. Re. 624 (4 W. L. M. 215); 26 Am. & Eng. Enc. Law 661, 662.
    
      Charles 8. Northu-p, for defendant in error.
   KINKADE, J.

This is an action for damages for breach of promise of marriage in the court of common pleas brought in this county by Minnie Walsh, who is a resident of Lucas county, against Daniel M. Mooney, who was a resident of Auglaize county, and service of summons had in this county. The defendant in that case appeared in court and moved the court to quash the summons that had been served upon him in this county npon the ground that he was a nonresident of the county, being a resident of Auglaize county; that he was then a member of the senate of Ohio, that the senate was' then in session, that he was here on senatorial business only at the time he was served, and the cause of action in the case accrued more than ten days prior to the first day of the session of the senate; and the court of common pleas, upon consideration of that motion, quashed the service, and this is a proceeding in error to reverse that action of the court of common, pleas.

Our attention, is directed to Art. 2, Sec. 12, of the constitution, to R. S. 5031 (Gen. Code 11278), and to R. S. 5457-5459 (Gen. Gode 11754-11756). It is said in behalf of the defendant in error here that the action of the court of common pleas was fully justified by R. S. 5031 (Gen. Code 11278), which reads as follows.:

. “A member- of the senate or house of representatives, or any officer of either branch of the general assembly, shall be privileged from answering to a suit instituted against him in a county other than the one in which he resides, upon a cause of action which accrued ten days before the first day of the session of the general assembly of which he is an officer or member. All proceedings in actions to which such a person is a party shall be stayed during such session, and the time necessarily1 employed in going thereto and returning therefrom:”

Counsel for the plaintiff in error contend that this section amounts to no more than a privilege to a member of. the house or of the senate from filing an answer in the ease in which he is thus sued; that it does not relieve him from being served with summons and required at a later time to answer, but only suspends the time within which he must answer, and our attention in support of this proposition is directed to the sections I have mentioned, R. S. 5457 (Gen. Code 11754) and incidentally R. S. 5458 and particularly R. S. 5459 (Gen. Code 11756).

R. S. 5457 (Gen. Code 11754) is the section of the statute that enumerates the persons who are exempt from arrest. It has seven subdivisions, and the first mentions the members, clerks, sergeants-at-arms, doorkeepers and messengers of the senate and the house during the session of the senate or house and during the time they travel either way in attending- the sessions, allowing twenty-five miles per day, etc. The second subdivision mentions electors attending and returning from election, and the third, judges of court while attending court, and the time necessarily employed in going and returning; the fourth, officers of the court, including attorneys, counselors' at law, clerks, sheriffs, coroners, constables and criers, and all suitors and jfirors. and witnesses; the fifth, females and soldiers of the Revolutionary war; sixth, Israelites, and persons observing the last day of the week, etc., and seventh, persons of the militia during the time they are on duty and going and returning therefrom. R. S. 5458 prescribes the places in which arrest shall not be ’made — the senate and the house and a court in session. R. S. 5459 is the general section that prescribes that none of the foregoing privileges shall apply in certain instances, and says:

“‘Nothing in this subdivision contained shall be construed to extend to cases of treason, felony, or breach of the peace, or to privilege any persons herein specified from being served at any time with a summons or notice to appear; and all arrests, not contrary to the provisions herein contained, made in any place, or on any river or water course within or bounding upon this state, shall be deemed lawful.”

The particular part of the section to which our attention is directed is, “or to privilege any persons herein specified from being served at any time with a- summons or notice- to appear, ’ ’ and it is said that unless effect be given to this language and the service in this case sustained by reason of this language in R. S. 5459 (Gen. Code 11756), then the language must be held to have no effect in the statute at all. Our attention has been called to but one ease in Ohio which supports the action of the court of common pleas, and counsel on behalf of the plaintiff in error contend that it is not a controlling authority and really of no weight in consideration of,the question presented here. This section of the statute, R. S. 5457 (Gen. Code 11754), is the only section of the statute which provides for this privilege from arrest, and it might appear upon a hasty reading of the section that it refers to nothing bnt arrest; but an examination of the question will show that that is not the ease.

This question was before the Supreme Court of Ohio in the case of Andrews v. Lembeck, 46 Ohio St. 38 [18 N. E. Rep. 483; 15 Am. St. Rep. 547], in which a man had been brought from Virginia on a requisition from the governor of Ohio and was in Cincinnati, and before he left there, after being released upon bail, a summons and order of arrest was issued and served upon him. He moved that the summons and order of arrest both be quashed, and this same contention was made, that this language here did not exempt the accused from service of summons at any time, that he might be required to appear. But the court held otherwise and set aside both the order of arrest and the summons and remarked in doing so that it was not necessary to refer to the statute in order to find authority to do it, but because the man being a suitor and having been brought vnthin the jurisdiction of the court to attend to a litigation in court, that it had been the law from time immemorial that he was exempt, not only exempt while returning to his home, but that he was likewise exempt from the service of summons — and was entitled to have the motion granted and the summons that had been served upon him quashed.

The same ruling will be found in Barber v. Knowles, 77 Ohio St. 81 [82 N. E. Rep. 1065; 14 L. R. A. (N. S.) 663], citing Andrews v. Lembech, supra, with approval and following it. There was no order of arrest in the case. A lawyer was journeying to Cincinnati to try a case, and stopped at Dayton and was there served with summons. If I remember correctly, the point was not made that they had a right to serve him if he was going direct to Cincinnati, but they claimed he had tarried longer than he should, and therefore the authority of Andrews v. Lembech, supra, did not apply, and they had a right to serve the summons upon him; but the court held that that was not the case and that the summons should be quashed in that case. It will be observed that this section, R. S. 5459, follows all the provisions exempting parties from arrest, one of the seven subdivisions of R. S. 5457; and it would look, as I have said, upon first reading, as though while those parties thus enumerated are all exempt from arrest, none of them would in effect be exempt from the service of summons, and no very good reason appears why a suitor or witness or a lawyer or any of the other parties enumerated in these seven subdivisions, with the exception of two, should be exempt from arrest and be exempt from summons if the members of the legislature should not. They are all put on the same ground, and the first persons enumerated as being exempt are the persons mentioned as members of the legislature. They are exempt from arrest and it would seem as if the legislature had made ample provision in those sections which have long been upon the statute book J;o prevent the arrest or the summoning of a legislator while attending the session or while going or returning from it. But in addition to that we find R. S. 5031 (Gen. Code 11278) specifically provides that they shall be exempt during the session from answering to any cause of action which accrued more than ten days prior to the opening of the session. It seems to us that the sections of the statute which I have mentioned, and taken in connection with the two eases which I have cited, clearly indicate that the legislature did not intend to provide that a member of the senate might be relieved from the duty of answering some petition filed against him in a county other than his residence until the session had closed and he had returned home, and then he must answer; but the section, we think, clearly indicates that during the session, or during the period necessary to travel to and return from the session, .and especially when the matter in question is a cause of action which arose more than ten days before the beginning of the session, as mentioned in R. S. 5031, the privilege is that he will not be summoned at all, and that no legal summons can be served upon him, excepting of course in the county of his residence, and therefore we conclude that the action of the court of common pleas must De affirmed in quashing the service.

Parker and Wildman, JJ., concur.  