57 Mo. 603 | Mo. | 1874
The petitioner avers that he was subpoenaed to appear before C. P. Ellerbe, a notary public, and give his deposition in a cause alleged to be pending in the St Louis Circuit Court, wherein Alexander Turnbull and others were plaintiffs and James E. Munford and others defendants. That upon bis failure to obey the subpoena, he was compelled by attachment
The statute provides that “any party to a suit pending in in any court in this State may obtain the deposition of any witness, to be used in such suit, conditionally.” (Wagn. Stat., 522.)
It appears from the testimony that a suit was instituted in usual form in the court and between the parties above mentioned, but a demurrer to the petition, for failure to state a cause of action, and for other objections, was sustained by the Circuit Court. That leave was given the plaintiffs to file an amended petition within thirty days, which period has not yet expired. That no amended petition has yet been filed. It is claimed, therefore, that there is no “suit pending” within the meaning of the statute.
The argument is pressed with much ability, that there cannot be a suit, without a cause of action; that a cause of action can only appear in a sufficient petition ; and that, the court having pronounced the petition insufficient, and the plaintiffs having abandoned it in obtaining leave to amend, there is therefore no petition in the case, and, necessarily, no suit about which testimony can be taken.
I am unable to yield to the force of these positions in the face of the law as I find it. It may have been very unwise in the legislature to open a door for the taking of testimony when neither the notary nor the witness can know what facts are to be tried. And yet almost every application of the statute abounds with such results. Our Supreme Court has decided that a deposition may be taken when the defendant’s property has been attached and before summons served or publication made. At such a stage of proceedings it is impossible to know what facts will be denied, or whether a sin
These considerations leave ns no excuse for attempting to strain the words of the statute aside from their plain, literal meaning. What is a “suit?” Whatever it may have been formerly, it is now, according to Chief Justice Marshall, understood to be “the prosecution of some demand in a court of justice.” Here, Turnbull and others, plaintiffs, came into the Circuit Court with a demand against the defendants. Have they failed to prosecute it ? Bv no means. When told by the court that the form in which it was presented was insufficient to be entertained, they did not go out of court, or
The history of every suit is comprehended in three stages; its institution, its pendency and its determination. When once instituted it is thenceforward pending, in every instant of time, until finally disposed of. As expressed by the superior court of New Hampshire, the term “pending” means nothing more than “remaining undecided.” In Maine, where, the statute is similar to ours, it was held that a ease was “pending,” so as to authorize the taking of depositions, even where a non-suit had been entered, but with leave to have it taken off if the plaintiff would appear on the first day of the succeeding term. Said the court: “ The suit must be regarded as pending from its first institution until its final termination.” (Brown vs. Foss, 16 Me., 257.) In an English chancery case, the complainant’s bill was dismissed ; and yet the suit was held to have been still pending, because sometime afterwards an appeal was taken to the House of Lords. (Gore vs. Stacpoole, 1 Dow., 31.)
I find no escape from the conclusion that the suit of Turn-bull and others vs. Munford and others was pending, literally and within the meaning of the statute, when the notary sought to take the petitioner’s deposition. The latter complains that the only object is to elicit facts from which to make a case against him. If this be so, it is a peril against which neither the constitution nor the statute lias undertaken to protect him. It is well understood that a witness can never refuse to testify, on the ground that his testimony may render him liable to a civil action. In this case the witness is certainly no-worse off than he would be if a petition were
As to all other matters of inquiry in this proceeding, I consider them settled by the opinion of our Supreme Court in Ex parte McKee, (18 Mo., 599.) After quoting from the several statutes relatiug to habeas corpus, witnesses and depositions, Judge Gamble proceeds to say: “A notary public, then, being authorized to take depositions, and- having the same powers for that purpose as are conferred on justices of the peace, may summon a witness before him, and enforce his attendance, if he fails to attend; and if he attends and refuses to give evidence which may lawfully be required to be given, the notary may commit him to prison until he give, the evidence. As to what evidence 1C may lawfully be required” on such occasions, the court declares this to embrace every question “ which is not his personal privilege to refuse to answer.” It is not claimed in this case, as it was not in that, that any question of personal privilege is involved. ‘The court in that case refused to issue the writ.
Upon the authority of that decision, 1 might have refused to issue the writ in the present case, but for the allegation in the petition, that “ no such cause was pending as alleged.” Taking that allegation as true for the purpose intended. I was disposed to construe every doubt in favor of the liberty of the citizen, and so not to apply Judge Gamble’s opinion to a case in which the notary had never acquired any jurisdiction of the subject matter. He is an officer of strictly defined powers, and cannot take a deposition at all, unless there be a