Cooper v. . Wyman
29 S.E. 947, 1898 N.C. LEXIS 352, 122 N.C. 784 (1898)
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Rule of Law:
A non-resident is exempt from service of civil process when they are present in a state for the sole purpose of attending litigation as a suitor or witness.
Facts:
- The defendant is a non-resident of North Carolina.
- The defendant traveled into North Carolina for the sole purpose of attending Swain Superior Court.
- He was in court to prosecute an action, in which he was sued, as a witness in his own behalf.
- While in North Carolina for this purpose, he was served with a summons for a different civil action.
Procedural Posture:
- The defendant, a non-resident, was served with a summons for a new action while attending court for a separate matter.
- In the trial court, the defendant filed a motion to dismiss the action based on this service.
- The trial court denied the defendant's motion to dismiss.
- The defendant appealed the trial court's denial of the motion to dismiss to the appellate court.
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Issue:
Is a non-resident exempt from service of civil process in a new action when they are in the state for the sole purpose of attending a court proceeding as a party and witness in a separate action?
Opinions:
Majority - Clark, J.
Yes, a non-resident is exempt from service of civil process under these circumstances. This immunity is a well-established common law rule based on public policy, not statute. The policy is to encourage non-residents, who cannot be compelled to attend, to voluntarily appear in court without fear of being served with process in other actions. Their presence is calculated to help courts educe the truth. This exemption covers the time of coming to, staying for, and returning from the litigation, but it is strictly limited to instances where the person is in the state for no other purpose. The court distinguished this broad common law immunity from any civil process from narrower state statutes that only prohibit civil arrest of witnesses, noting the two rules have different origins and purposes.
Analysis:
This opinion reaffirms the long-standing common law doctrine of witness and suitor immunity from service of process for non-residents. It emphasizes that the rule's foundation is public policy aimed at the effective administration of justice, rather than statutory mandate. The decision clarifies the scope of the immunity, stressing that it is absolute only when the non-resident's presence is exclusively for litigation purposes. By also providing a procedural guide—advising a motion to strike service rather than a motion to dismiss—the court offers practical direction for future litigants seeking to invoke this protection.
