| Mo. | Mar 2, 1911
Brockman (in the custody of Nolte, sheriff of St. Louis) sued out a writ of habeas corpus. By virtue of the order of Fox, C. J., he was admitted to bail pending hearing. The writ commanded said sheriff to produce his body at our bar, together with the time and cause of his imprisonment. By stipulation he waived the production of his body, agreeing to hold himself ready and willing to submit to our orders in the cause and to be dealt with according to law. The sheriff made return and petitioner answered. Subsequently, on motion, John A. Blevins, Esq., of the St. Louis Bar, was appointed special commissioner to take testimony, make a finding of facts and report on a day certain. He, having qualified, obeyed our order, and the cause is submitted upon the petition (including exhibits), the return, answer, report of our special commissioner, petitioner’s exceptions thereto, arguments'ore tenus by counsel for petitioner and on behalf of certain parties designated as intervenors, and on briefs. .
The case seeks the gist of the pleadings and exhibits, viz.: '
The petition alleges that in May, 1910', there was a corporation doing business in St. Louis named the Lightning Lunch Company; that one McGregor with Gregg and Brockman were its directors — Brockman, president; Gregg, vice-president, and McGregor, secretary — that McGregor and Link brought suit agaiüst
The original petition in the suit of Link et al. v. Brockman et al., attached, as said, as an exhibit, shows the Lightning Lunch Company has a capital stock of $30,000, divided into 300 shares, and is governed by a board of three directors, and complains of the acts committed by Gregg and Brockman at a certain annual election and more particularly of the acts of Brock-man committed at said election and subsequently; that on or about the time of said election Link owned 82 and McGregor 53 shares of stock; that of the 165 remaining shares the corporation itself held 35 of them in trust and Brockman owned 130 shares; that for a long time McGregor and Link, by virtue of owning said 135 shares, had a controlling voice in the company’s affairs and in the election of three directors; that at a former time McGregor, Brockman and one Kroeger were directors; that sometime in 1907, Finch, the owner of 15 shares, surrendered them to the company in consideration of the sum of $700 paid him out of the corporation’s funds and his shares were thereby cancelled; that in September, 1908, one Stevens owned 20 shares and at that time surrendered them to the company on the payment to him out of the funds of the company of about $1100 and the said 20 shares were thereby cancelled; that Link purchased Kroeger’s
The Lightning Lunch Company filed answer (also ■an exhibit) making certain formal admissions and denying all other allegations.
Brockman’s answer (also an exhibit) admitted the ownership of himself and his friends of 130 shares, the division of the capital stock into 3001 shares; that Mc-Gregor and Link owned 135 shares. In substance, he then alleges that Gregg owns 35 shares and that at the corporate election in January, 1910', Brockman, Gregg ■and plaintiffs participated therein, that 3001-2 votes were cast for Brockman at said election as director, the same number for Gregg and 2991 for McGregor, and none for any other person; that McGregor voted 53 votes for Brockman and 53 for Gregg; that prior to .that time both Link and McGregor knew “whence” Gregg derived his title to his stock and suffered him to participate in the election as a voter without objection or challenge. He denies that plaintiffs, as stockholders, or any other stockholders, were refused permission to examine the books or that he has disregarded their rights as stockholders or has refused to deliver to McGregor the seal of the corporation or any of its books. He avers that Link and McGregor had free access to the books and took copious notes from and copies thereof; that McGregor, as secretary, was en
Gregg’s answer to the original suit, also attached as an exhibit, among other things, alleges that on December 4, 1909, he bought his stock from his codefendant Brockman in good faith, with no notice of any infirmity in the title and paid $1500' to Brockman, being the full market value, and since that time had been in possession of said stock, enjoying the rights and privileges thereto appertaining. He then reiterates the averments of the answer of his codefendant Brock-man relating to the stockholders’ election in January, 1910, his participation therein without objection from Link and- McGregor, and his election therein as director.
The amended petition, also attached as an exhibit, pleads title of the new plaintiff, Selleck, to 15 shares of stock by purchase in part from McGregor and in part through one "Weller in May, 1910, — said Weller having purchased from McGregor. It makes allegation of the incorporation of the Lightning Lunch Company, and the ownership of stock therein, barring Selleck’s stock, the same as in the original, and renews the allegations pertaining to the purchase by the Lunch Company of 35 shares of stock from stockholders prior to December, 1909, alleging that said stock thereby became and was held thereafter as “treasury stock.” It then alleges, as in the original petition, the sale of said stock by Brockman to Gregg for $1500 paid to the Lightning Lunch Company; that said sale was fraudulent and without authority; that Brockman without authority delivered to Gregg certificates of stock, signed by him as president and a man by the name of Taylor as secretary; that Taylor was not secretary, but ■ had been appointed secretary by Brockman without
Other ¿xhibits attached to the petition for a ha-teas corpus, are the motion to strike out the amended petition, the attachment issued by Commissioner • Shields, commanding the sheriff to attach Brockman’s body and have him before the commissioner on the 14th day of June, 1910; to testify in the case. We do not consider the contents of either material.
The warrant of commitment under which petitioner was arrested, also attached as an exhibit, is long and need not be set forth. The only question made in regard to it in petitioner’s brief will be considered presently.
By the return to our writ, the sheriff justifies his arrest and custody of Brockman under a warrant of commitment issued by Commissioner Shields on June 14, 1910, commanding the attachment of the body of Brockman, his commitment to the jail of the city of St. Louis and safe keeping, without bond, until he should give evidence required of him before said commissioner or until discharged by due process of law; that on June 15, he took Brockman into custody and thereupon Commissioner Shields suspended the warrant until the forenoon of the 16th day of June, in so far as it required the prisoner to be put to jail; that on June 16, while Brockman was thus in custody, he.was released on bond by virtue of our order. Setting forth
To that return petitioner filed a voluminous an-SAver or reply, justifying his new pleading on the theory the facts showing his unlawful detention £ £ do not appear sufficiently upon the face” of the sheriff’s return. He then, to show his right to a discharge, undertakes to restate the allegations of his original petition. We find nothing substantially new in this reply or answer, beyond explaining a little more fully the facts and circumstances leading up to the warrant of commitment and characterizing the conduct of plaintiffs by epithets more inflamed and biting than those in the original petition — the substantive facts remaining the same. There is, however, a denial of one recital contained in the warrant of commitment, viz., a recital to the effect that petitioner had refused to be sworn as a witness and had failed and refused to answer questions propounded to him by plaintiffs’ counsel. He avers that he did not refuse to be sworn, and that said questions were simply “talked” into the record after petitioner had left the presence of Commissioner Shields, and were not propounded to or heard by petitioner.
With pleadings in the fix outlined, we appointed John A. Blevins, Esq., our special commissioner, to take proof and report the testimony with his finding of fact. He took testimony, including that taken before Commissioner Shields (also submitted here), covering, say, 600' pages of typewriting, and reported his finding of fact.
On the coming in here of his report, petitioner filed a score of exceptions thereto. On the argument at our bar, we had these exceptions, the pleadings and their exhibits,- the return report, etc., together with a paper writing labeled, “Suggestions in reply to petition for writ of Habeas Corpus” filed by attorneys for
Attending to the report of our special commissioner, he found many facts germane to the principal suit and tending to prove or disprove the allegations of the petition and answers in that suit, all of which we omit for reasons presently given. He found the suit of Link et al. v. Brockman et al. was pending in the circuit court of the city of St. Louis on a petition containing the allegations hereinbefore outlined; that answers were 'filed of the character we have stated; that notice was given of the taking of depositions and that such proceedings were had as resulted in the appointment by the circuit court of Leighton Shields as special commissioner to take them; that he, under that authority, proceeded in due course with the taking of the depositions; that petitioner, among others, was called as a witness by plaintiffs, was examined and his examination taken in shorthand; that at the close of his examination, plaintiff’s counsel-announced he was through with the witness for the present, but that he wanted to examine him further as soon as he could prepare and file an amended petition; that counsel for Brockman then insisted that Commissioner Shields should discharge the witness and he did so; .shortly thereafter an amended petition was filed in the cause (an abstract of which has been heretofore given); that a motion was then filed to strike it out, which motion is pending; that afterwards plaintiffs applied verbally to Commissioner Shields for a subpoena for Brockman, which was issued and served, requiring him to appear at a place and time certain; that Brockman disobeyed the mandate of this subpoena and an attachment was
Any other facts necessary to the determination of any vital question will appear in the opinion in connection with the consideration and determination of the question itself.
(a). -The vast volume of this record bespeaks a foreword by way of preliminary ruling. Nearly all the testimony taken by Commissioner Blevins, as well as that taken by Commissioner Shields (also here, as said), and many of the findings of Commissioner Blevins, go directly to the merits of the principal suit and were leveled at proving or disproving the issues in that suit. The same is true of the majority of the exceptions made to the report of our commissioner. The same is true of some of the propositions advanced in petitioner’s brief and argument. The principal suit is not here on its merits. To draw those merits into this controversy, to comment on them or adjudicate them, by way of parenthesis or anticipation, upon a petition for a habeas corpus to discharge a witness committed for contempt for refusing to testify in that case, would be untimely and prejudicial — it would make ducks and drakes of orderly procedure. Such course would tend to foreclose the issues and embarrass the proper disposition of the principal case when its merits •are reached for final disposition below. Hence, it would be highly improper to pass directly or indirectly at this time on the merits of that suit or to be drawn prematurely into deciding even what the testimony tended to prove or disprove in that regard. The precept is: Nothing is permitted to a court except what is legally submitted to the court. Applying that precept, when the great Writ of Right goes down commanding any person charged with wrongful interference with the liberty of another to bring the body with the time and caus'e of imprisonment, the controlling issue is: The fact of detention and custody, and (if found to exist) the lawfulness of it.
In the petition are allegations that the original suit was brought in bad faith for sinister purposes, viz., to press a spur in petitioner’s side and force him
Attending to that phase, the good faith, the motive of a litigant, is not a subject of inquiry in a suit to the extent that a justice of .the peace, a notary or special commissioner, charged with taking depositions, has a call to determine the good faith of the action before he can compel a witness to testify or commit him for refusal to answer competent questions. To rule otherwise, would be to inject an anxious and extraneous question in the taking of depositions to be sprung by every witness or party at. any time, at his own motion. Doubtless, there are cases where the matter of good faith may guide the trial court to a just judgment on the merits, when the question arises on the whole proof, though the general doctrine is that a court has to do with legal liability alone and not with the mere motive actuating a litigant in invoking the judgment of the court on that legal liability, so long as the parties are adverse and the suit is not feigned. We are cited to no authority and know of none permitting a witness to refuse to answer a question at the taking of his deposition by springing the question of good faith in the suit. That would be an easy, self-made road of escape, when hard pressed, from giving testimony on a tender point — a road hitherto untravel
Accordingly, we rule that petitioner’s case must stand or fall on the commitment and on facts constituting the res gestae, viz., the facts directly leading up to the issuing of that commitment. This ruling cancels out the factor of good faith in the original suit.
Constrained by the rulings and reasons given, we put away from us all testimony, all findings of our commissioner, all exceptions to his report and all propositions advanced bearing only upon the merits of the principal suit, using the term “merits” in a sense broad enough to include the bona fides of that suit.
(b). There is one other preliminary matter. Before Commissioner Blevins, also here, attorneys for plaintiffs in the original suit were allowed to appear and take a substantial part in the proceeding. Below, as here, petitioner’s counsel unavailingly objected to such appearance' and now invites a ruling thereon. Cui bono9 But waiving the view implied by that question, it is clear that appearance was either of grace or of right. On such premise we rule:
(1). If such' appearance was as amici curiae, and as a matter of grace, then that grace alone concerns us. Grace doth not abound through consent of one’s adversary. It droppeth, withal, like mercy — as the gentle and refreshing dews of Heaven. It goeth where it listeth.
(2). If that appearance below or here is because plaintiffs in the original suit are interested of right in this proceeding as auxiliary to and in aid of the principal suit (and counsel plant it on that theory), we can see no objection to it in reason. Fiat lux is a motto of universal and wholesome use. «Commissioner - Shields moved in the premises at the instance of the
The point is ruled against petitioner.
II. Of the commitment.
(a). After the venue and title of the cause, the caption of the commitment reads: ‘£ The State of Missouri, to the Sheriff of the City of St. Lpuis and to the Jailor of the City of St. Louis, Greeting: — ” Then follow sundry whereases, reciting facts leading up to and descriptive of the contempt — the writ concluding as follows:
“NOW THEREFORE, We hereby command you, the said Sheriff of the city of St. Louis, and Jailor of the city of St. Louis, to attach the body of the said Frederick W. Brockman and commit him the said Frederick W. Brockman to the jail of the city of St. Louis and the body of him'there safely keep, without bail, within the said jail of the city of St. Louis, at the expense of the said Frederick W. Brockman, until he, the said Frederick W. Brockman gives such evidence or until he be discharged by due course of law.”
Learned counsel for petitioner argues in his brief that the writ is “strang'e to the law;” is in “hideous form,” and cannot justify his client’s detention — particularizing in this fashion: The writ is directed to the sheriff and jailor of the city of St. Louis; its commands run to those two officers; among them is one to “attach” the body; hence, the writ is bad because dual in form, contáining both an attachment, a capias, and
The propositions advanced are refined to a degree. It is obvious at a glance that the jailor of the city of St. Louis had neither the warrant nor the prisoner. • Our writ did not run to- him. He did nothing and threatens nothing at this time. He has not usurped the office of sheriff, nor has the latter usurped his. Petitioner seized the psychological moment when he found himself not in jail but in the sheriff’s hands, not the jailor’s. Therefore, even if the warrant were too broad (which we do not rule), its mere breadth has hurt no one at this time, for our writ halted the matter by a challenge to the sheriff’s, not the jailor’s, right to custody. The question, then, whether the jailor could justify under the writ on 'his physical incarceration of the prisoner, or the question whether the sheriff could justify if he, not the jailor, held the prisoner actually in jail, is not before us. On the record of this particular case, because of what follows, we need not say whether the writ is defective in “some matter of substance;” for that statutory ground of discharge (R. S. 1909, sec. 2474) is not properly before us. Observe, we are not proceeding without pleadings by the prisoner, as we have statutory power to do in an emergency. [R. S. 1909, sec. 2445.] Such a case as
In habeas corpus it is the duty of the petitioner to state the facts entitling him to discharge on his best knowledge and belief. [R. S. 1909, sec. 2442.] He must show in what the illegal restraint- consists and probable cause why the writ should issue. If he state no ground for relief, the writ will be denied. [Ex parte Roberts, 166 Mo. 207" court="Mo." date_filed="1901-12-17" href="https://app.midpage.ai/document/ex-parte-roberts-8014152?utm_source=webapp" opinion_id="8014152">166 Mo. 207.] The return of the officer must be responsive to the writ. Among other things, the officer must produce the warrant by virtue of which he holds the prisoner. [Ibid., sec. 2456.] The return is taken as true if no issue is made by denial. This, without reference to the allegations of the petition. [Ex parte Durbin, 102 Mo. 100" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/ex-parte-durbin-8009899?utm_source=webapp" opinion_id="8009899">102 Mo. 100.]
In the case at bar the sheriff justified under the writ. In neither the petition nor in the reply to the return of the officer did petitioner ask a discharge because the writ was defective nor did he raise any issue of law or fact of that sort.- He did deny certain recitals of fact in the body of the writ, presently to be considered. That was all he had to say against the writ at that time— a túne appointed by the law for him to speak and let his wants be known. The contention that the writ was strange to the law and in bad form
We are relieved from serious anxiety about the foregoing disposition of the matter, because had petitioner thought to stand on the point as one of substance, he should have moved for his discharge as a ' matter of law on the coming in of the return and the exhibition of the alleged defective warrant of commitment. He did not do that and thereby prove his faith in his works. To the contrary, he took another road. By implication he adopted the theory the warrant was • not defective on its face. Accordingly, he made reply and then applied for and got a special commissioner to take evidence on controverted facts. If the writ were void, as now. contended, then the vast volume of testimony pouring into the case through the opening of that appointment was not only a costly and idle mummery, but laid an onerous and thankless burden on the court and counsel.
We conclude the contention is an afterthought, by way of a üiakeweight, or, if not an afterthought, the position was abandoned when the door was open to challenge the warrant instanter on its exhibition here in the return. He voluntarily closed that door by impliedly repudiating bis right to enter.
(b). By his reply to the return, petitioner averred there was a false recital in the warrant to the effect that he refused to be sworn as a witness and failed and refused to answer questions propounded to him by plaintiff’s counsel. He denies that he refused to be sworn and avers that the questions were talked into the record after he left Commissioner Shields’ presence and were not propounded to or heard by him. In dis
III. It is contended there is nothing to show that Commissioner Shields was appointed to take ' testimony, therefore, absent a warrant of authority, a discharge must go. There is no substance in the proposition. Because:
The very petition runs on the theory Commissioner Shields was appointed by the circuit court and had taken upon himself the burden and powers of such appointment. It so alleges. The warrant recites his appointment and that recital is not denied by petitioner’s reply or answer to the sheriff’s return. The answer or reply reiterates the same allegation. It is a mistake to suppose that admissions count for nothing, or that the formulation of a proposition in a brief lodges a question in a case contrary to the solemn admissions of the pleadings. It is not the office of a brief to formulate the issues for the first time; that office belongs to the pleadings, and, as said, in habeas corpus the grounds of discharge must appear there.
We have been furnished, since the submission, with a certified copy of the appointment of Leighton Shields
The point is ruled against petitioner.
IV. This brings us to the main question: Was the detention of the petitioner unlawful?
We have read every line of the testimony and find it substantially sustains the facts reported by our commissioner. This petitioner, brought before a duly appointed commissioner at a time and place regularly appointed, was advised by counsel to refuse to testify. His testimony, in part, had theretofore been taken. At that prior time, under protest of adversary counsel and upon the insistence of his own, the commissioner let him go. This action of the commissioner is called a “discharge.” Subsequently, the commissioner was of mind he had erred in such discharge as a finality. He caused him to be resubpoenaed, giving two days’ notice. Mr. Brockman saw fit to disobey that subpoena. On a'showing made by affidavit, an attachment issued and he was brought in, unity nitty. The commissioner was in session with a witness on the stand. That examination over, petitioner was directed to take the wit-, ness stand. There was a pother, a dramatic scene, the incidents of which may as well be left to oblivion. The upshot was that he contemptuously refused to become a witness and contemptuously, against the protest of the commissioner, left the room. He said he had business on some exchange, but we cannot shut our eyes to the fact that his business elsewhere was not a controlling factor. If he had asked in a proper way for a mere accommodating postponement of his testimony under spur of a business emergency, doubtless the commissioner would have respectfully considered that request. He planted himself on no such ground, but, having disobeyed the subpoena by advice of counsel, his counsel then and there denied the power of the commissioner to make him testify at all, and petitioner’s
It is said that the filing of an amended petition required some order of the circuit court in the premises. We find no authority for that. We see no reason for it. ■ The cause was pending, the court had appointed a commissioner to take testimony and that order was not restricted to one petition or another. The commissioner stood informed of the filing of the amended petition. His order to go on stood in full vigor, and petitioner was without any power to break up the commissioner’s court. For aught we can see, the commissioner proceeded in strict compliance with the statute. [R. S. 1909, sec. 6356; Ibid., sec. 6404; Ibid., sec. 6384.] The provisions of the statute relating to the taking of depositions de bene esse are in the nature of the old chancery practice relating to a bill of discovery, entitling the party to sift the conscience of his adversary. [Eck v. Hatcher, 58 Mo. l. c. 239; Larimore v. Bobb, 114 Mo. l. c. 453.]
There are other questions in'the case we deem immaterial.
We think the prisoner should be remanded to the