Von Kesler v. Superior Court

An action having been commenced in Los Angeles County by the petitioner, a resident of Illinois, he appeared in person to prosecute the same, whereupon he was served with process in an action filed against him by the defendant in the. former suit. Petitioner’s counsel, by a special appearance, moved to vacate such service upon the ground that he had appeared only as a party and witness, and that service upon a nonresident suitor or witness is Void. Said motion was denied, and the present proceeding in prohibition is here presented, seeking to restrain further proceedings in the action last mentioned.

That a nonresident, appearing before the courts of any state merely as a witness, may not be subjected to service of process in a civil action while in attendance only for that purpose, is the consensus of the authorities cited by both parties, and is not denied. As to whether or not one appearing voluntarily as a party may be so served, there is a conflict of authorities. These decisions are so numerous that they have been classified, respectively, under a “majority rule”, that he is in the category of witnesses, and a “minority rule”, to the contrary. However, in the instant case…