272 Mo. 68 | Mo. | 1917
The suit is for damages for false imprisonment, brought in the Jackson County Circuit Court. On the trial of the cause, March 4, 1914, after all the evidence had been introduced by both the plaintiff and the defendant, the court instructed the jury to return a verdict for the defendant.
On the 14th of November, 1907, the plaintiff herein was arrested on an attachment issued by W. W. Calvin, notary public, on account of his failure to appear on that day and give his deposition in a case pending in the circuit court of Jackson County, Independence Division, wherein B. C. Boyles was the plaintiff, and the plaintiff here, S. D. Burnett, was the defendant. Plaintiff was arrested at his farm, some four or five miles from Independence, and taken by the constable under the attachment to the office of Calvin in Kansas City where he arrived about five or six o’clock p. m. The notary discharged him upon being informed that the notice to take depositions was irregular in particulars explained below. This arrest furnished ground for the cause of action charged in the petition.
The answer alleges that a suit was filed in the case of Boyles v. Burnett on the 11th day of November, 1907, in the circuit court of Jacks on County, at Independence, and on the same day a notice was served on the plain
The plaintiff claimed, as shown by his reply and his evidence introduced at the trial, that the suit on which the notice was served was not filed until November 12th, and therefore when the notice to take depositions was served upon him there was no suit pending corresponding to the notice, for which reason he was not bound to appear. It was further claimed by the defendant that inasmuch as the notice to take depositions stated that the depositions were to be taken in a suit pending in Jackson County at Kansas City, it was not notice of the suit actually filed, even if it had been filed at the time notice was'served, because that suit was filed at Independence instead of Kansas City.
The notice to take depositions as copied in the record, contains the mistake mentioned, but the subpoena alleged to have been served at the same time was not introduced by either party, nor any offer made by either party to show that it was lost or to prove its contents. The only evidence of the service of a subponea on November 11th was that while plaintiff was on the stand, after stating that he had received the notice to take depositions, he was asked:
“Q. At the same time you got a subpoena to appear at Mr. Prince’s office to give your deposition on the 14th day of November, didn’t you? A. Yes, sir.”
To prove the suit was filed November 11th, defendant offered the petition in the case of Boyles v. Burnett, showing the rubber stamp file mark as follows: “Piled Nov. 11, 1907, Oscar Hochland, Clerk, by A. R. White, Deputy.”
On the part of plaintiff two deputy clerks were introduced and identified books kept in the office of the clerk of the circuit court which purported to contain entries made when cases were filed. In each of these some entry in relation to filing the case of Boyles v. Burnett, No. 18,750, appears under date of November 12, 1907. These books also showed several other entries on the day’s business of November 12th, before the entries in relation to the case of Boyles v. Burnett. The two deputy clerks who testified to these matters explained that the rubber filing stamp had an arrangement by which they would move up the date each morning in order to change it from the previous day and stated that they would sometimes forget to change it in the morning until after they had used the stamp; that the stamped date on the petition, “November 11, 1907,” possibly was made in that way on the morning of the 12th before they discovered it had not been moved up, and that according to this record the suit must have been filed on November 12th. The deputy, A. R. White, who stamped the file mark on the petition as of the date of the 11th and in whose handwriting appeared the entry on one of the books, stated he could not remember the filing of the case, but thought that the file mark was correct.
It is asserted that the abstract of the record proper fails to abstract any final judgment rendered. The abstract of the record proper shows the following:
“March 4, 1914. Jury returned verdict for defendant and judgment accordingly for the defendant.”
This abstracts a judgment for defendant as fully as need be. If it were a judgment for plaintiff some further particulars as to the charactér of the judgment might be necessary, but being a judgment for the defendant this describes its character.
It is complained that the record proper fails to show that a motion for new trial was ruled upon “and the nature of the motion.” After reciting the filing of the motion for new trial in due time on March 7, 1914, there follows this entry: “May 2nd, 1914, motion for new trial overruled.” This record shows the motion was ruled on and the “nature” of the motion — it was a motion for new trial.
It is claimed that the record proper fails to show that any bill of exceptions was duly filed. The recital in the abstract of the record proper shows the following:
“May 2, 1914. Plaintiff granted leave to file bill of exceptions on or before November 1, 1914.
“October 31, 1914. Bill of exceptions allowed and filed.”
It is urged by respondents that in the absence of a formal entry showing the filing of the bill of exceptions, the recital should contain the exact words required by Rule 31 of this court, which provides that it will be sufficient if the abstract states the bill of exceptions was “duly filed. ” Respondent lays immense emphasis upon the word “duly.” One of the dictionary meanings of “duly” is “timely.” Now, the word “filed” has a certain significance and if the bill of exceptions was “filed,” and filed within the time provided, then it is “duly filed.”
In depositions to he taken out of the State, before authority is given a commission is necessary, unless waived. In taking depositions of witnesses within the State no commission is necessary except under conditions mentioned in section 6390. But always, whether a commission issues or not, the notice is necessary before any of the officers named in section 6387 can take the testimony or enforce the attendance of witnesses, or perform any function in connection with the taking of depositions, such as issuing subpoenas.
A notary or justice of the peace has no power in the premises until the statute is complied with. It is the proper service of a proper notice of the time and place which vests the officer with authority to take testimony and to compel the attendance of witnesses by issuing subpoenas. [Secs. 6392, 6394-6, and 6404, R. S. 1909; Tiede v. Fuhr, 264 Mo. l. c. 628; In the Matter of Whicker, 187 Mo. App. l. c. 100.]
Under section 6404 the officer is authorized and required to take depositions “in pursuance of this article, or by virtue of any commission issuing out of any court of record,” and “shall have power'to issue subpoenas for witnesses to appear and testify, and to compel their attendance,” etc. He must have authority either by the commission issued to him or ‘ ‘in pursuance of this article” to-wit, by the service of notice. The issuance of a commission in the one case gives him authority as the service of the notice does in the other. ' The service of the notice is the summary method of vesting authority in, the certain officers named in the statute to perform the functions of the court, otherwise a special commission would be required.
At the time the attachment was served in this ease the officer had the benefit of two subpoenas, one of them
In the Tiede case, supra, the notice was void because it gave an impossible date, and the court in hold-ink void the subpoena afterward issued, said: “In such case in the absence of authority [by service of notice] to take depositions there can be no power to subpoena and attach witnesses whose depositions are desired.”
In the Whicker case, supra, the notice was served on the wrong party, and the Kansas City Court of Appeals said (187 Mo. App. l. c. 101): “The notary was without authority to take depositions, and consequently was without authority to subpoena Whicker.”
The respondent apparently conceded that the notary was without power to take evidence and issue an attachment before the notice was served, but seemed to think he could issue a subpoena and that it would be good if it were merely served after the notice. He sent the notice and subpoena along together, with a person not an officer, and that person after serving the notice at the same time served the subpoena. The subpoena was unauthorized when issued, and the subsequent service of the notice could not give it validity. It is the same condition as a summons issued in a ease before the petition is filed, it is void process. [Hust v. Conn. 12 Ind. 257; Gearhart v. Olmstead, 37 Ky. 441.] Yoid process is defined to be such as was issued without power in the court to award it, or which the court has not acquired jurisdiction to issue in the particular case. [Bryan v. Congdon, 86 Fed. 221.]
The mistake in this ease in the notice to take depositions was in the place where the suit was pending. There was no suit pending in Kansas City, but there was a suit pending in Independence. Respondents claim that it is all one court and that the mistake -is not a
The judgment is reversed and the cause remanded.
PER CURIAM: — The foregoing opinion of White,
C., is adopted as the opinion of the court.