12 Mo. App. 80 | Mo. Ct. App. | 1882
delivered the opinion of the court.
The petitioner applies for a writ of habeas corpus, to in■quire into the legality of his imprisonment in custody of the sheriff and jailor of the city of St. Louis. His petition sets forth at length the alleged causes of his detention, with all the facts constituting his claim to be released ; so that there is no difficulty in determining, upon the hearing of this application, all the questions that would arise upon an issue and return of the writ. The causes and facts thus shown are substantially as follows : —
Charles H. Peck instituted a suit in the St. Louis Circuit Court, returnable to the April term, 1882, against this petitioner and other defendants, the petition wherein charged that the defendants, by false pretences of the ownership of large means, including valuable lands in Texas and elsewhere, had induced the plaintiff to sell and convey to them a valuable leasehold of the Windsor Hotel, in the city of St. Louis, at the price of $50,000, payable partly in cash, and the remainder in the property described, which was alleged to be worth $30,000, or more ; that in the course of their bargaining, there were several modifications of the agreed terms of sale, but finally, conveyances were made on both sides, and the plaintiff put the purchasers in entire possession of the leasehold and its appurtenances; that after-wards, the plaintiff discovered that the said purchasers were in fact impecunious adventurers without substantial means, whose supposed title to the Texas lands was based upon a forgery, and was absolutely valueless; and that other property and securities employed to effect the purchase were worthless, or nearly so.
The prayer of the petition was for a cancellation of deeds, and for such further relief as would place the several parties in statu quo.
After the filing of the petition and service of process in that suit, but before the return term, the plaintiff proceeded to take depositions for the cause, under Eevised Statutes, chap
We have given space to these details, chiefly in order to show that there is no parallel in this case with Ex parte Krieger (7 Mo. App. 367), wherein the prisoner was discharged. There, the petitioner was called upon to testify in a proceeding against himself and others, as officers of a bank, for receiving current deposits after they had knowl
The statute provides as follows (Rev. Stats. 352): “ Section 2130. Any party to a suit pending in any court in this state may obtain the deposition of any witness, to be used in such suit conditionally.”
The intended application of the word “ conditionally ” appears in section 2157, which must be read in connection with the foregoing, thus: “Examinations or depositions taken and returned in conformity to the provisions of this chapter, may be read and used as evidence in the cause in which they shall have been taken, as if the witnesses were present and examined in open court on the trial thereof. * * First, if the witness resides or has gone out of the state ; second, if he be dead ; third, if by reason of age, sickness, or bodily infirmity he be unable to, or cannot safely,
We are here confronted with the claim of petitioner’s counsel, that the word “conditionally,” in the first section above quoted, refers as well to the taking of the deposition, as to the using of it. As the sentence is framed, no rule or usage, of grammar or of language, will tolerate such an assumption. If we were to say, “ Every teacher of a public school may purchase a Bible, to be used in such school occasionally,” would any man in his senses assert that the adverb ‘ ‘ occasionally ’ ’ was intended to qualify the purchase, as well as the use of the book? We think not. And yet, although the meanings are different, the structure of the two sentences, and the relations of their respective elements to one another, are precisely the same. That such an idea was never contemplated by the legislature is evident from other provisions of the statute. The only “ conditions” whereby the statute makes specific the general qualification in the first section, are those which appear grouped together, under a common introduction, in the second section above quoted. It follows, upon the constructiod claimed, that a wise provision ■ is made for talcing the deposition of a witness “ if he be dead.” But the permission given is expressly that the “ deposition taken” may be “read andused in evidence” upon the specified conditions. Nothing is here included about the conditions of taking the deposition. It results, if counsel is right, that the deposition can be taken only “ conditionally ” according to the first section, and yet the statute leaves us wholly in the dark as to what the condition or conditions may be. The ingenuity of coun
The obvious and beneficent purpose of the statute is,
We are of opinion that the notary, in committing the witness under the circumstances, did nothing but what was his bounden duty under the law. The writ of habeas corpus is¡ therefore denied.