Gambrill v. Parker

Steavart, J., delivered the opinion of the Court. The refusal of the Court below to grant the motion of the appellants to quash the summons issued by the clerk for William B. Gambrill, a witness, to testify for the plaintiffs, was a mere interlocutory proceeding in the progress of the case, entirely within the discretion of the Court, and certainly not such final judgment, or determination, from which an appeal will lie to this court. The appeal, therefore, must be dismissed. As the record, however, has been brought before us for the purpose of obtaining the judgment of this Court' upon the questions presented, some of which are of practical importance, and have been elaborately argued by the counsel for the appellants, we will take occasion to express, briefly, our views in regard thereto.

If the witness, William B. Gambrill, summoned to testify for the plaintiffs, was one of the plaintiffs, we do not perceive how' the appellants could, in any manner, be injured by the refusal of the Court to grant the motion. ⁵ But if he were a party plaintiff, no summons for him to testify for himself ought to have issued, because, when a pai’ty proposes to testify in his own behalf, under the provisions of the Act of 1864, ch. 109, it is his duty to attend, without any subpoena. No summons should issue in such case. The provision of the Code, in regard to the compulsory attendance of witnesses, has no application to a party who is a witness in his own behalf. If the witness were not a party, the plaintiffs still had full power to discharge him, without invoking the aid of the Court.

We have no doubt of the power and authority of the Court below, under the Constitution and laws of the State, to prescribe the rules referred to in the motion to quash. The 29th Article, 1st section of the Code, authorizes the Courts of Law and Equity to make such rules and orders, for the regulation of their courts, and the officers and suitors thereof, as they shall think fit. The 21st section of 4th Article of the Constitution provides for the holding of four terms of the Circuit Courts in