#### AUSTIN-WESTERN ROAD MACHINERY COMPANY, Respondent, v. OWEN, Appellant.

(168 N. W. 860).

(File No. 4351.

Opinion filed September 6, 1918.

Rehearing denied November 4, 1918.)

1. Process — Defendant in State as Witness — Motion to Set Aside Judgment, Delay as Waiver of Right, As Affecting Service by Publication — Statute.

A motion to set aside a default judgment rendered against defendant, on the ground that when served with summons he, being a non-resident, had come within the state solely for purpose of being a witness in another case, and was therefore exempt from service ' of such process, which motion was not made until about two months after service of summons and attachment and garnishee processes, comes too late; such delay *111amounting to a waiver of the right to insist upon the privilege of immunity from service; the service! as made being valid until voided; and the delay in moving for relief upon the default having rendered it too late for plaintiff to have begun publication of summons' within the 3 0 days . after attachment, as ¡provided for in Code C'ic. Proc., Sec. 205.

2. Same — Privilege of Immunity From, To Non-resident Witness— Promptness Re Relief From Service, Necessity — Statute.

The claim of privilege as immunity from service of process upon a non-resident person who comes within the state for the purpose! of being a witness in another case, is allowable only to those who act promptly and in good faith, as defined in Civ. Code, Sec. 2448, defining good faith as consisting in honest intention to abstain from taking unconscientious advantage of another, through forms or technicalities of law, together with an absence of all information or belief of facts rendering the transaction unconscientious.

Appeal' from 'Circuit Court, Butte County. Hon. James Mc-Nenny, Judge. '

Action ¡by the Austin-Western Road 'Machinery Company, against Henry F. Owen, accompanied by writs of attachment and garnishment. Objections to jurisdiction of trial court in entertaining motion flor judgment by default, and entry of judgment thereon for plaintiff; from which judgment defendant appeals.

Affirmed.

/. *M.*Armstrong, for Appellant.

*O. B. Parnhatm,*and *Dan*McCutchen, for Respondent.

(i)' To point one of the opinion, Appellant cited:

32 Cyc. 495; Smith vs. Jones (Me.) 49 Am. Rep1. 598; Finucane vs. Warner, 112 N. Y. Suppl. 137; Mathew's vs. Puffer, 10 Fed. 606.

Respondent cited1:

Clark v. Grant, 2 Wend. (N. Y.) 257; Calce v. Haight, 63 N. Y. 'Supp. 1043; Spencer v. Newton, 33 F. C. L. 157; Randall v. Gurney, 5 F. C. L. 271.

GATE'S, J.

This action was begun by the issuance ¡of a summons and warrant of attachment on December 16, 1916. On December 18, 1916, the summons was served upon the appellant personally in Butte county, and property of the defendant was attached by the sheriff. A garnishee summons was also served on the defendant, and upon the garnishee on December 19, 1916. The complaint was filed in the clerk’s office on January 18, 1917. On *112February io, 1917, and long after .the defendant was in default, he appeared -specially and served' an affidavit and objections to the jurisdiction of the .court -and a notice -o-f motion of hearing -on said objections. The' matter came on for hearing before the -court on March 3, 1917, and on that cl-ay the court made and entered an order overruling said objections an-d -on the same day entered jud-g'm-ent for plain-tiff by default. The defendant appeals from the judgment, -and contends that the proof submitted to the -court upon the hearing of the- objections- sho-ws that he was a resident of Colorado, and was -personally in South- Dakota -on the date -of' the service of the summons upon him solely for the purpose of being a witness in another -case pending in Butte county, an-d was therefore exempt from the service of process upon him. Plaintiff -contends that the proof fairly shows that -the defendant came into- this state for the additional purpose of collecting -certain judgments which he -had previously obtained, and ¡thát -he -unreasonably delayed his- return to his home -after the necessity for his presence as a witness had expired-. Plain-tiff further -contends- that, regardless of the foregoing, an-d even- if -defendant was immune from- the service -of process- upon -biro when made, -he waived the immunity privilege -by neglecting to -claim- it until February 10, 1917. We are -inclined- to -the view that plaintiff is right in this -contention, an-d it therefore becomes .unnecessary to 'determine the -other point raised-.

[1-3] Plaintiff claims, and -defendant Concedes, that the service of the summons- upon a privileged person is not void, but may be waived, and that it remains valid until -avoided. Section 205, C. -C. P., requires that personal service -of the summons shall be ma-cle or publication thereof begun within 30 -days after the -attachment. Until an -attempt was made to- -claim -the privilege, plaintiff was entitled- to rely upon the service. At the time of the -claim- o-f privilege, the defendant was tout of the state, and plaintiff -could 110-t -have obtained personal service of summons upon him- within the state. It -was also too late for plaintiff to- have begun the publication of summons according to the letter of the statute above referred to. Even if under section .5.5.1, -C. C. P., by reason of the fac-ts the court could h-ave enlarged the time for -such publication, which we -do not -decide, still the -delay -of the defendant in- asserting his privilege would have prejudiced the rights of the plaintiff *113in the premises. The claim of privilege, under all authorities, is allowed only to those who act promptly and in goiod faith as defined in section 2448, C. C. Finucane v. Warner, 60 Misc. Rep. 336, 112 N. Y. Supp. 137. Whether or not the delay was an intentional act of bad faith is immaterial; its effect- would be the same. The -defendant makes two other contention which are utterly -without merit and do nio-t require consideration.

The defendant unreasonably 'delayed the exercise of the privilege of claiming immunity from service of process, and should therefore !be held to be estopped from asserting it. Upon that ground the judgment appealed from is affirmed.