J. & H. STABLES, INC. v. Robinson

Henderson, J., delivered the opinion of the Court. This appeal is from a decree rescinding and cancelling a written agreement for the lease of a race horse, on the ground that there had been substantial breaches of the agreement. At an earlier stage of the case the appellant filed a motion to quash the writ of summons, which was denied, and it is conceded that the correctness of this ruling is open on the appeal from the final decree. Guerreni v. Sainsbury, 139 Md. 246, 251 . 1 This is the first question presented.

Robinson, a resident of Lexington, Kentucky, raised a two-year old colt named “Ragout”, and in 1957 leased it to J. & H. Stables, Inc., a New York corporation engaged in the business of training and racing horses, under an agreement to share the earnings. The horse began to race in 1958, and won considerable money at tracks in Maryland, New Jersey, ³⁶⁷ and Ohio. However, in August, 1958, Robinson sought to replevy the horse in Ohio, claiming various breaches o£ the agreement. The suit was dismissed on the ground that it was filed in the wrong court.

While the horse was at Bowie in Maryland, in February, 1959, Robinson instituted a replevin suit against the trainer, R. W. Duncan. The appellant, through its president, Joseph Reisman, a resident oí New York, petitioned the court for leave to intervene, was granted leave, and filed pleas. The case went to trial and resulted in a judgment for the defendant, Duncan, for reasons not disclosed by the record. In the course of that trial, the appellant corporation was served with process, in the present suit, by service upon Reisman who was attending the trial on behalf of the corporation.

The motion to quash the service was based upon Maryland Rule 104 g which provides: “During such time as a nonresident is in this State for the purpose of testifying as a witness or for prosecuting or defending an action, he shall not be subject to service of process.” While the rule was new when it took effect January 1, 1959, it merely stated the pre-existing case law. See Bolgiano v. Gilbert Lock Co., 73 Md. 132 ; Long v. Hawken, 114 Md. 234 ; Blick v. Cockins, 131 Md. 625 ; Minch & Eisenbrey Co. v. Cram, 136 Md. 122 ; Feuster v. Redshaw, 157 Md. 302 . Cf. Mullen v. Sanborn, 79 Md. 364, and see also Margos v. Moroudas, 184 Md. 362 , and note 10 Md. L. Rev. 80 .

The cases elsewhere are generally in accord. See Stewart v. Ramsay, 242 U. S. 128 . It has often been described as a rule of the common law, based on public policy and the due administration of justice. Cf.

Code (1957), Art. 26, sec. 3 (ch. 65, sec. 51, Acts of 1805), providing that “No person shall sue or be sued in privilege”, and Brookes v. Chesley, 4 H. & McH. 295 . Maryland Rule 104 g makes it clear that the immunity extends to parties litigant as well as witnesses, and the cases, that the immunity extends to nonresident corporations as well as individuals. In the Bolgiano case, supra, service upon one Lance, individually and as the secretary of a foreign corporation, was quashed upon a showing that he was attending trial in a case in which the corporation was plaintiff and Bolgiano ³⁶⁸ was defendant. It was shown that the