Generally,
a suitor or a witness in attendance
upon the trial of any case in court, is privileged from arrest under any civil
process, and is exempted from the service of any writ or summons upon him or
them while in attendance upon such court, or in going to or returning
therefrom.
Steelman v. Fowler,
234 Ga. 706, 217 S.E.2d 285 (1975).
There are
two exceptions. First, “it does not
apply to criminal defendants or nonresidents, who are in this state temporarily
‘for some purpose other than to appear in court as a party or witness.’” Loiten
v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007) citing Ausbon v. Ausbon, 131 Ga. App. 530, 531, 206 S.E.2d 546
(1974).
Second, it
only protects “a party in attendance upon the trial of a case from service of
process in a new action.” Blalock v.
Blalock, 247 Ga. 548, 550, 277 S.E.2d 655 (1981). For instance, a party suing for contempt
could be served in court with a modification of custody matter which was
actually a part of the same matter. Id.
In Loiten, the defendant appeared at trial to
contest a restraining order entered against him ex parte for which he was not properly
served (he received the order but not the petition). At the hearing, the trial court asked him to
waive service which he refused. The
court then instructed the sheriff to serve the defendant in the parking
lot. On appeal, the service was found to
be ineffective. Id. at 638. The court held
that although an ex parte hearing had been previously had, the matter was new
to the defendant and therefore he was protected by the Steelman rule.
