Cooper v. . Wyman

Citations

• 29 S.E. 947
• 122 N.C. 784
• 1898 N.C. LEXIS 352

Syllabus

<p>Process — -Non-Residents—Exemption from Service of Process — Privilege—Common Law — Implied Repeal —Judgment Dismissing Action not Appealable — ■ Practice.</p> <p>1. A summons or other civil process cannot be served upon a non-resident who comes into this State for the sole purpose of attending a litigation in our courts as suitor or witness. Such rule is based upon high considerations of public policy and not upon statutory law, since it is to the public interest that suitors and witnesses from • other States, who cannot be compelled to attend the courts, may not be deterred from voluntarily appearing.</p> <p>2. The exemption of non-resident suitors or witnesses from service of civil process while attending courts in this State covers the time of their coming, their stay and a reasonable time for returning.</p> <p>3. Service of civil process upon anon-resident suitor or witness attending court in this State is not void but voidable and his remedy is not a motion to dismiss the action, but a motion, on a special appearance, to set aside the return of service.</p> <p>4. The common law privilege of the exemption of non-residents from service of civil process while attending upon litigation in the courts of this State, as suitors or witnesses, was not repealed, by implication, by Sections 1367 and 1735 of The Code prohibiting arrest in civil actions of persons attending courts as witnesses or suitors.</p> <p>5. The refusal of a motion to dismiss an action is not appealable, the correct practice being to note an exception to such refusal so as to have it considered on appeal from the final judgment.</p>