Greenleaf v. . Bank , 133 N.C. 292 ( 1903 )

CLARK, C. J., and DOUGLAS, J., concurring. Upon the motion to strike out the returns of the sheriff of service of process (summons) upon the defendants, The Peoples Bank of Buffalo and Norris Morey, the following are substantially the facts as found by his Honor: In February, 1898, an action was begun in the United States Circuit Court for the Eastern District of North Carolina, in which the East Coast Cedar Company was plaintiff and The Peoples Bank of Buffalo, N. Y., American Exchange Bank of Buffalo, N. Y., William A. Ensign and Charles A. Ensign and (293) Henry H. Persons and John R. Hazel, receivers, were defendants. The defendant Morey was one of counsel for the defendants, and A. D. Bissell was vice president of The Peoples Bank. Under a decree for the sale of the real estate described in the pleadings the sale took place at Manteo, N.C. on 12 November, 1902. Service of the summons in the case before us was made personally upon Bissell by the sheriff of Dare County at the sale, Bissell being present at the sale and in the State, by the advice of counsel, and for no other purpose than to attend the sale. The summons was served upon the defendant Morey in an action for debt in Wake County, N.C. on 2 January, 1903, at his hotel, while he was in attendance upon the United States Circuit Court for the purpose of representing his clients as their attorney in the matter of a notice made in the cause for the confirmation of a sale made by certain commissioners, and for the entry of a decree confirming the sale and directing title to be made to the purchasers in accordance with the practice of the United States courts. Both Bissell and Morey were at the times of the service of summons residents of New York State and had been for many years just preceding the service of the summons; Bissell having been in North Carolina at that time solely for the purpose of representing The Peoples Bank at the sale, and the defendant Morey solely for the purpose of attending the court as attorney for his clients in the case, and especially to attend to the matters embraced in the motion.

Upon motion of counsel in the court below, who made special appearances, his Honor struck out the returns of the sheriff of service of process (summons) upon Bissell and Morey, and it was adjudged by the court that the service be vacated and set aside.

As to the service made upon the defendant, The Peoples Bank, the question resolves itself into this form: Is service of a summons an invalid service if made upon a managing officer of a nonresident corporation who is in this State for the sole purpose of attending (294) a sale of land in which his corporation is interested, and the sale being made under a judicial decree of the Circuit Court of the United States in an action in which the foreign corporation was a party? The answer to the question depends upon whether or not the sale was such a matter as amounted to a judicial proceeding and rendered Bissell's presence equivalent to a constructive presence in the court. If so, his Honor was correct in his judgment vacating the service of the summons on The Peoples Bank, for, in Cooper v. Wyman, 122 N.C. 784, 65 Am. St., 731, this Court held that parties and witnesses who were nonresidents were exempted from the service of summons and other civil process from the time of their coming into this State, during their stay, and a reasonable time for returning, and when they are here for no other purpose whatever. But we are of the opinion that the sale of the land, although made under a judicial decree, was not such a judicial proceeding as would exempt a party interested from service of civil process. Bissell was not before the court constructively; he was not attending the taking of depositions under order of the court, nor was he doing anything which could alter the decree of sale of affect in any manner the action of the commissioner who had been ordered to make the sale. That officer was directed by the court to do all that was to be done on the day of sale; that is, to make the sale and report the result back to the court. At that time the defendants would then have their day to make exceptions to the report, or to take any action concerning it which they might deem proper. We therefore think his Honor was in error in setting aside and vacating the return of the sheriff of Dare of the service of the summons upon The Peoples Bank of Buffalo.

(295) As to the service of the summons upon Morey, the attorney at law: The common rule on the question of service of process in civil actions upon attorneys is stated in 2 Taylor on Evidence, sec. 1330, in these words: "In order to encourage witnesses to come forward voluntarily, they are not only protected from any action for defamation with respect to such statements as they may make in the course of judicial proceedings, but in common with parties, barristers, solicitors, and, in short, all persons who have that relation to a suit which calls for their attendance, they are protected from arrest upon any civil process while going to the place of trial, while attending there for the purposes of the cause, and while returning home." In 3 Blackstone's Commentaries, star page 289, the rule is laid down thus: "Also clerks, attorneys, and all other persons attending the courts of justice (for attorneys, being officers of the courts, are always supposed to be there attending) are not liable to be arrested by the ordinary process of the court, but must be sued by bill (called usually a bill of privilege), as being presumably present in court." We have no statute-law in this State affording exemption to attorneys from the service of court process upon them, and, as we have seen, there was nothing at common law which exempted an attorney from being served with process in the nature of our summons. The service of the summons upon Morey was therefore regular, and should not have been vacated and set aside by his Honor.

The question does not arise in this case as to whether the common-law exemption, to its full extent, of an attorney from arrest in a civil action prevails in this State, but we think an expression of opinion on the matter might not be out of place. The provision of The Code embraced in section 641 provides that "all such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of or repugnant to or inconsistent with the (296) freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for, in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State." The matter of exemption from service of process in civil actions, as it prevailed at common law, has been the subject of revision by our statutory law, as will appear by reference to sections 1367 and 1735 of The Code. Section 1367 provides that witnesses shall be exempt from arrest in civil cases during their attendance at any court, and during the time such witnesses are going to and returning from the place of attendance; and section 1735 prohibits the sheriff or other officer from arresting under civil process any juror during his attendance on or going to and returning from any court of record. As we have said, we have no legislation on the subject of the exemption of attorneys from the service of process, but we think, under our institutions and because of obsoleteness by nonusage, the privilege ought not to be afforded to attorneys except when they are actually in attendance upon court in the due course of their employment as attorney.

In a very few states of the Union the courts have held that attorneys at law, while in attendance upon court, are exempted from the service of summons or other process not in arrest; but the reasoning upon which those decisions are based is not satisfactory to us. It must be borne in mind that the privilege of exemption from arrest afforded to attorneys while attending court is not so much for the benefit of the lawyers as it is for their client, and for the aid they give to the court as officers thereof in the due administration of justice.

There was error in the vacation and setting aside of the sheriff's return of the service of the summons upon Morey, the attorney.

Error.