37 Kan. 666 | Kan. | 1887
The opinion of the court was delivered by
This is a proceeding in habeas corpus. H. M. Beardsley obtained a writ from this court upon the representation that he was'unlawfully restrained of his liberty by W. H. Layne, the sheriff of Cherokee county, upon a mittimus issued by Ira Heaton, a notary public of the same county. The mittimus was issued for an alleged contempt in not producing four letters which Beardsley had in his possession while giving his deposition before the notary. The deposition was being taken in a case pending in the circuit court of Jackson county, Missouri, wherein the Bank of Columbus was plaintiff, and John N. Ritter and L. L. Doubleday, partners as Ritter & Doubleday, were defendants. The action was based on the breach of a contract made between the parties whereby the bank sold all its property and assets to Ritter & Doubleday, and under the terms of which the parties bound themselves, each in the sum of $5,000, for the faithful performance of the contract. S. L. Conklin, the president of the bank, signed the contract, and principally conducted the negotiations; but after the contract had been made, and before it had been reduced to writing, he was compelled to be absent, and he called in R. R. Conklin to complete the contract, which was done on September 1, 1887. Subsequent to that time, R. R. Conklin wrote the letters in question to S. L. Conklin, and which came to the hands of H. M. Beardsley as the attorney of the bank.
Several reasons are urged why the petitioner should be
On the other point it is urged that if the letters had been competent evidence the. notary had no authority to compel itheir production. The testimony when taken, as we have seen, was for use in the circuit court of Missouri. The depositions were taken by the notary under a general notice, and not upon a commission from that court. It seems that the laws of Missouri provide that if parties desire the testimony of a witness residing out of the state, they must sue out .of the court in which the suit is pending a commission to take