In re Davis

38 Kan. 408 | Kan. | 1888

The opinion of the court was delivered by

Johnston, J.:

The notary public held the petitioner to be in contempt for refusing to give his deposition in a case pending in the circuit court of the United States for the district of Kansas, wherein the petitioner was plaintiff and the St. Louis & San Francisco Railway Company was defendant, and for this refusal committed him to the custody of the sheriff, to be imprisoned in the common jail of Sedgwick county. By this proceeding the petitioner seeks to be relieved from imprisonment, which he contends is illegal on account of the insufficiency of the notice to take depositions, defects in the subpena and commitment served upon him, and also a lack of authority in the notary public to compel one who is a party to an action in the federal court to give his deposition j and finally, that the attempt to take the petitioner’s deposition was not made in good faith or with any intention of using the deposition when taken as evidence, but the only object being to oppress and injure the petitioner.

The last ground of illegality alleged is all that we need to examine, and it is clearly sufficient to accomplish the discharge of the petitioner. There is an express admission by the railway company that it was not acting in good faith in the matter, and did not intend to offer in evidence the deposition proposed to be takeu, but that it was acting oppressively and for the purpose of fishing out the plaintiff’s evidence. This being conceded, the attempt to compel him to testify, and his imprisonment for refusing, is a clear abuse of judicial authority and process. The law permits depositions in a pending case to be taken upon certain conditions; but it proceeds upon the theory that the testimony when taken will be competent, and is intended in good faith to be read in evidence in the trial of the cause. Remoteness from the place of trial, which may make the personal attendance of the witness impracticable, and age and infirmity rendering the witness unable to travel and appear at court, are some of the conditions under which a party is permitted to take a deposition de bene esse. The right of taking the deposition of the petitioner is placed on the condition that he resides more than one hundred miles from the place of trial; and the claim is, that he is not excluded from so testifying by the fact that he was a plaintiff in the action. But assuming that a party may be compelled to give his deposition in a common-law action in the federal court, it certainly never can be taken unless there is a bona fide purpose to use the testimony if the statutory contingency on which it is permitted to be taken exists when the trial occurs. The privilege of taking depositions should not and cannot be employed to fish from a witness facts that are irrelevant or incompetent to the issues in the case to be tried. Nor can any quality of testimony be thus taken out of curiosity or spite, or to annoy or injure the witness, or to be used for any other purpose than as evidence in the pending cause. Ordinarily, the good faith of the proceedings would' be presumed; but here the conduct and concessions of the parties disclose a purpose to use the machinery of the law to accomplish an improper purpose, and to annoy and injure the petitioner. His deposition was taken in the same case and at the instance of the same party at Pittsburg, Kansas, on October 31, 1885. Four days later he was notified that the railway company would take his deposition at "Wichita, Kansas, on November 7, 1885; and while he was at Wichita, the company there notified him that it would take the depositions of himself and other witnesses at Springfield, Missouri, on November 11, 1885. Coupled with this conduct is the admitted fact that the information which the company obtained and was endeavoring to abstract from the witness, was not intended to be used as evidence at all. It is an abuse of the process and authority of the law which cannot be tolerated; and upon this ground alone the imprisonment must be held illegal.

The judgment of the district court will be reversed, and the cause remanded with the direction that the petitioner be discharged.

All the Justices concurring.