The cases sustain the text. White v. Underwood, 125 N.C. 25 ( 34 S.E. 104, 46 L.R.A. 706, 74 Am. St. Rep. 630); Davis v. Duffie, 1 Abbott App. Dec. (N.Y.) 486; Dunn's Appeal, 35 Conn. 82; Phelps v. Phelps, 7 Paige Ch. (N. Y.) 150. The case of Dunn's Appeal, supra, is somewhat similar to the case before us. He was confined in the Hartford county jail and was there served with process although he belonged in East Windsor. It was held that the service was good. The legislature of this State has recognized the propriety and validity of such service and has made provision for service on defendants confined in jails and prisons. 3 Comp. Laws 1915, § 12444.

Case law of other jurisdictions generally favors this type of civil service of process on prisoners. See White v. Underwood, 125 N.C. 25, 34 S.E. 104 (1899); Merchant's Administrator v. Shry, 116 Va. 437, 82 S.E. 106 (1914); Steindler Paper Co. v. Charlevoix Circuit Judge, 234 Mich. 288, 207 N.W. 896 (1926). Appellant was not served in this manner in the instant case.

(Emphasis added.) Authorities which support the above statement are Thornton v. American Writing Machine Co., 83 Ga. 288, 9 S.E. 679, 20 Am. St. Rep., 320; Kalloch v. Elward, 118 Me. 346, 108 A. 256, 8 A.L.R., 750; Thompson's Case, 122 Mass. 428, 23 Am. Rep., 370; Monroe v. St. Clair Circuit Judge, 125 Mich. 283, 84 N.W. 305, 52 L.R.A., 189; State v. Gillmore, 88 Kan. 835, 129 P. 1123, 47 L.R.A. (N.S.), 217; and White v. Underwood, 125 N.C. 25, 34 S.E. 104, 46 L.R.A., 706, 74 Am. St. Rep., 630. Similar language is contained as follows in Section 12, Article II of the Constitution of Ohio:

" See, also, Bubar v. Dizdar, 240 Minn. 26, 60 N.W.2d 77; Ryan v. Ebecke, 102 Conn. 12, 128 A. 14, 40 A.L.R. 88; Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962, 27 L.R.A. (N.S.) 333; White v. Underwood, 125 N.C. 25, 34 S.E. 104, 46 L.R.A. 706; In re Henderson, 27 N.D. 155, 145 N.W. 574, 51 L.R.A. (N.S.) 328; Anderson v. Atkins, 161 Tenn. 137, 29 S.W.2d 248; State ex rel. Alexander-Coplin Co. v. Superior Court, 186 Wn. 354, 57 P.2d 1262. A number of the Federal courts as well as a few state jurisdictions have adopted a rule contrary to the Minnesota doctrine and have granted immunity to parties present under compulsion within a jurisdiction to defend criminal charges against them. Adamy v. Parkhurst (6 Cir.) 61 F.2d 517; Bramwell v. Owen (D. Ore.) 276 F. 36; Church v. Church, 50 App. D.C. 239, 270 F. 361, 14 A.L.R. 769; Feister v. Hulick (E. D. Pa.) 228 F. 821; Kaufman v. Garner (C. C. W. D. Ky.) 173 F. 550; Murray v. Wilcox, 122 Iowa 188, 97 N.W. 1087, 64 L.R.A. 534; Moletor v. Sinnen, 76 Wis. 308, 44 N.W. 1099, 7 L.R.A. 817; Martin v. Bacon, 76 Ark. 158, 88 S.W. 863.

At common law a person in prison could be sued and the mere fact that he was so confined furnished no exemption against service of civil process on him. White v. Underwood, 125 N.C. 25, 34 S.E. 104, 46 L.R.A. 706; 42 Am. Jur., Process, Section 104; 41 Am. Jur., Prisons and Prisoners, Section 39; 72 C.J.S. Process § 82, page 1123. However, Sections 10-232 and 10-237 of the 1952 Code provide that a person imprisoned shall appear by guardian ad litem in any action by or against him. If plaintiff, such guardian ad litem shall be appointed upon his application or that of a relative or friend. If defendant, the appointment may be made upon his application if he applied within twenty days after services of the summons, or if the person imprisoned fails or neglects to so apply, the application may be made by the other party to the action upon due notice.

In Crusco v. Strunk Steel Co., 356 Pa. 326, 74 A.2d 142, 20 A.L.R.2d 160, the Pennsylvania Supreme Court held that a defendant residing outside of a county in which a civil action had been commenced, and who was arrested on a warrant issued on an information of the plaintiff in the civil action and brought within the county, was not immune from civil process merely because of his status as a criminal defendant. For an excellent collation of authorities, see annotation in 20 A.L.R.2d 160, pages 163 to 189, and the following cases cited therein: Dunn's Appeal, 35 Conn. 82; Williams v. Bacon, 10 Wend. 636; Rosenblatt v. Rosenblatt, 110 Misc. 525, 180 N.Y.S. 463; White v. Underwood, 125 N.C. 25, 34 S.E. 104, 46 L.R.A. 706, 74 Am. St. Rep. 630; and Mosier v. Aspinwall, 151 Okla. 97, 1 P.2d 633. "* * * person in custody on a criminal charge, whether before or after conviction, may be served with civil process." 42 Am. Jur., Process, Section 138.

In the case of Moore v. Green, 73 N.C. 394, the holding of the Court is briefly stated in the syllabus of the opinion, in the following language: "A defendant, who has been brought into Court on criminal process, and discharged from arrest under the same on bail, is not privileged from being arrested on civil process immediately afterwards, during the sitting of the Court and before he leaves the Court room." And in White v. Underwood, 125 N.C. 25, 34 S.E. 104, the defendant was served with process while confined in jail upon failure to give bond for his appearance to answer a criminal charge. Clark, J., in speaking for the Court, said: "The sheriff has authority to serve process anywhere in his county, in jail as well as elsewhere. The jail possesses no `privilege of sanctuary.' The reason for the exemption of witnesses and jurors from civil arrest (Code, secs. 1367 and 1735) and of nonresident parties and witnesses voluntarily attending Court here from service of any civil process ( Cooper v. Wyman, 122 N.C. 784), do not apply to parties arrested in criminal proceeding.

Engle v. Manchester, 46 App.D.C. 220; Church v. Church, 50 App.D.C. 239, 270 F. 361, 14 A.L.R. 769; Larned v. Griffin, C.C.D.Mass., 12 F. 590; Kaufman v. Garner, C.C.W.D.Ky., 173 F. 550; Roos v. H. W. Roos Co., 64 Ohio App. 464, 28 N.E.2d 1008. Ex parte Levi, D.C.W.D.S.C., 28 F. 651; Schwartz v. Dutro. Mo.Sup., 298 S.W. 769; White v. Underwood, 125 N.C. 25, 34 S.E. 104, 46 L.R.A. 706, 74 Am.St.Rep. 630. See also Starret's Case, 1788, 1 Dall., Pa., 356, 1 L.Ed. 174; 2 R.C.L. 479; 4 Am.Jur. 68; 6 C.J.S., Arrest, § 3, p. 574.

The court assumes that, had the defendant been in North Dakota as a witness or suitor before the civil courts of the state, he would, upon his claim of privilege, have been exempt from service in a civil suit, the court relying upon the distinction drawn by many courts between cases in which a party is present in the foreign jurisdiction in response to or in resisting some criminal process or proceeding and cases where the person sought to be subjected to such process is present in such jurisdiction as a witness or a party to a civil action. The following authorities also support the New York rule: Moore v. Green, 73 N.C. 394, 21 Am. Rep. 470; Wood v. Boyle, 177 Pa. St. 620, 35 A. 853, 55 Am. St. 747; In re Walker, 61 Neb. 803, 86 N.W. 510; Ryan v. Ebecke, 102 Conn. 12, 128 A. 14; Reid v. Ham, 54 Minn. 305, 56 N.W. 35; White v. Underwood, 125 N.C. 25, 74 Am. St. 630. Respondent relies upon many cases, most of which are cited in the case of State ex rel. Gunn v. Superior Court, supra, and lays special emphasis upon the case of Feister v. Hulick, 228 Fed. 821, which case and the case at bar are almost identical as to facts.

The Supreme Court of the United States has never passed upon the point, but accords the fullest measure of exemption in civil cases to parties and witnesses. Stewart v. Ramsay, 242 U.S. 128, 37 Sup. Ct. 44. Aside from the Federal cases there is lack of agreement in decisions of the State courts. The rule giving no exemption is upheld in the following cases, in addition to those cited above: White v. Underwood, 125 N.C. 25, 34 S.E. 104; Scott v. Curtis, 27 Vt. 762; Lucas v. Albee, 1 Denio (N. Y.) 566; Wood v. Boyle, 17 7 Pa. 620, 35 A. 853; Morris v. Dowell, (Mo.) 205 S.W. 229. There are cases from other States which hold otherwise. Text-writers are also at variance.