126 Mo. App. 309 | Mo. Ct. App. | 1907
Lead Opinion
The petitioner stands committed to jail for contempt, by virtue of a commitment issued by a commissioner appointed by the. circuit court of the city of St. Louis to take depositions in a cause pending in said circuit court. The contempt is alleged to have been committed by the petitioner refusing to answer any questions that might be put to him as a witness before the commissioner. The commissioner’s journal shows the following facts: That the taking of the depositions had been in progress for a number of days and the petitioner’s deposition had been taken; that the plaintiff in the case, at whose instance and on whose notice the depositions were being taken, on M'ay 8,1907, notified the opposite party that he had examined all the witnesses he desired to examine, with the exception of a Mrs. Green, on whom he had failed to get service, and asked that the taking of the depositions be continued to the following day for the purpose of affording him an opportunity to make another effort to secure the attendance of Mrs. Green. The continuance was agreed to and the taking of depositions was continued to the following day. Mrs. Green was not served with the subpoena issued for her, and on May 9, in the ab
“Witness: I came up to see what you wanted with me; on the last day, I understood you were through with me.
“Counsel for plaintiff: Have you communicated with Mr. Kline or Mr. Kinealy, that you were sum- ' moned here this morning?
“Witness: Yes.
“The Commissioner: They know that you are to be here this morning?
“Witness: Yes.
“Counsel for plaintiff: Of course, if you desire to notify your attorneys and want them here, we will wait until you do so. If you don’t want to, we will go on. If you don’t we won’t keep you very long. You can do just as you please about that.
“Witness: Well, Mr. Commissioner, I have been advised that these depositions were closed; so that being the case, I will have to decline to answer any further questions.
“The Commissioner: You were advised by your attorneys?
“Witness: Yes.
*313 “The Commissioner: Mr. Kinealy?
“Witness: Well, by my attorneys.
“The Commissioner: When you were present here the other day, .you were ashed certain questions, and it appeared at that time that the counsel for plaintiff was not through with you, but stated in the presence of all present —
“Counsel for plaintiff (Judge Dillon) : I think, in fairness to the witness, I think we stated at that time that we were through with the witness, but the depositions were not closed. It was distinctly understood that the depositions were laid over until another day. But afterwards, we found certain questions we wanted to ask the witness. There seems to be no question but what we have a right to resummon him. I think we did say at that time to Mr. Green that we were through with him — that is my impression of it; but the further taking of depositions was laid over, and in looking over the testimony, there are a few other questions we want to ask the witness, and we concluded to have him re-summoned, and question Mm further, and that is the situation this morning.
“Counsel for plaintiff (Mr. Sprinkle) : Would you like to call up your counsel —
“Counsel for plaintiff (Mr. Dillon): No; he has been advised by his attorneys, I suppose, not to answer.
“The Commissioner: Do you wish to call up Mr. Kinealy or Judge Klein, to ask them if they want to be here?
.“Counsel for plaintiff (Judge Dillon): I think not; the witness said he has come here after consultation with them; and he don’t intend to answer any more questions. We have been going over that testimony, Mr. Sprinkle and myself, and find some questions that we would like to have him answer; that is the situation.
“The Commissioner: You stated that your counsel wouldn’t be here?
*314 “Witness: Well, I simply said that I am advised that the depositions have been closed.
“The' Commissioner: Have you been advised not to answer any further questions?
“Witness: I decline to answer any further questions.
“The Commissioner: Have you been advised to that effect?
“The Witness: Yes, sir.
“Counsel for plaintiff (Judge Dillon) : That being so, what is the reason for asking any questions at all. The witness says he declines to answer any questions to be put to him. I submit that that being so, the witness be committed for refusal to submit to further questions.
“The Commissioner: Wait a moment Mr. Green; I say just wait a moment. Do you want to put any questions to him?
“Counsel for plaintiff (Judge Dillon): I think it is useless to put any questions. When the witness states he is under advice of counsel not to answer, and is under the impression that the taking of these depositions is closed, by advice of counsel, he has come here determined to answer no questions that may be put to him.
“The Commissioner: That is your position Mr. Green?
“The Witness: Yes, sir.
“The Commissioner: You won’t submit to any examination at all?
“The witness: No, sir; I understand the depositions are closed.
“The Commissioner: Well, I think that you have been laboring under a misapprehension, and that being the case, I think under the law, you ought to be compelled to answer the questions; they are all proper questions, and if you decline to do it. we will have to let the law take its course.
*315 “Counsel for plaintiff (Mr. Sprinkle): Now, he has declined to answer any questions. Just sit down Mr. Green. We are not going to put you to any unnecessary delay. Now in order to make the record clear, wouldn’t it be best for us to put one question Judge, and if he refuses —
“Counsel for plaintiff (Judge Dillon, interrupting) : I think when the witness says he won’t submit to any examination at all, that-that follows, and we ask that the witness—
“The Commissioner: I think that that is all the law requires.
“Counsel for plaintiff (Judge Dillon, continuing): And I ask for the commitment of the witness, for refusal to further answer any .of the questions that may be put to him.”
Thereupon the commissioner sustained the motion of counsel for plaintiff for a commitment and adjudged the witness stand committed for contempt in refusing to answer any further questions that might be put to him.
The petitioner contends that the commitment and his imprisonment thereunder is illegal for two reasons: First, because the adjournment of the taking of depositions from May 9 to May 10 and from the tenth to the eleventh were without any cause, were unauthorized; and that the authority of the commissioner to take depositions terminated on May 9, and he was therefore without jurisdiction to commit the petitioner for contempt; and second, .that as no question was propounded to the petitioner as a witness, he was not guilty of contempt in refusing to answer a proper question.
In Ex parte Krieger, 7 Mo. App. 367, it is said, “There is no such thing known to the law as contempt of a notary public;” that the Legislature has clothed a notary with authority, in the exercise of the function to take depositions, to commit a witness who refuses
In Bracken v. March, 4 Mo. 74, “Notice was given to take depositions on July 14 — to be continued if necessary from day to day until completed. The depositions of two witnesses were taken, commenced on the fourteenth and continued from day to day until July 16, when they were completed. Held, that as the depositions for anything appearing on their face might have been taken in an hour — something must also appear to justify the delay — and unless something did so appear they ought to be suppressed — what was done each day should appear on the record.” At page 77, the court said: “The officer in our opinion should have kept a journal so as to show what was done on each day. If it should happen that there was more writing required than could be conveniently done in one 'day that would be a good cause for continuing the examination till the next day. If on the other hand a witness in attendance became sick and unable to attend till the next day, or if one duly summoned had failed to attend, either might be a good reason for an adjournment till the next day, and the statement of such facts on the .journal would perhaps be very good evidence of the necessity. But in the present case we have nothing to show us why the reducing of the testimony of these two witnesses to writing was protracted for so long a time. We are therefore led to the conclusion that they
In Owens v. Peyton, 70 Mo. App. 50, it was ruled: “Where the other party does not appear to the taking of depositions, proceedings should begin on the day named in the notice; and, if adjournments occur, entries should be made each day of the proceedings of that day together with the adjournment.”
Notice to take depositions must state the place, the day and between what hours of the day depositions will be taken, and that if not completed on that day, the' taking will continue at the same place and between the same hours from day to day until completed; and to authorize the reading of the depositions, it must appear from the return of the officer taking them that they were taken in pursuance of the notice. If for any reason tbe taking is adjourned to the’following day, the cause for the adjournment should be noted by the officer taking the deposition. The authority of the commissioner to take the depositions can only be exercised in pursuance of the notice served by the plaintiff upon the defendant of the time and place of their taking, and it seems to me that any unauthorized adjournment would be a departure from the terms of the notice, and have the effect of ousting the jurisdiction of the commissioner to proceed further in the taking of depositions and that his authority to take them could only be restored by the service of a new notice. But waiving the question of the jurisdiction of the commissioner to take depositions on the fourteenth of May, I think the petitioner is entitled to his discharge, on the ground that it affirmatively appears from the journal of the commissioner that the petitioner was not guilty of contempt in refusing to answer any question that was propounded to him as a witness. His declaration that he would not answer
Concurrence Opinion
(concurring). — It appears that on May 8, counsel for both parties being present, a continuance of the taking of depositions was had by consent of all concerned until 11 o’clock, a. m. on M'ay 9, 1907. Thus far there is no room for controversy. The record with respect to the continuance had on May 9, is as follows: “Now on this Thursday, May 9, A. D. 1907, at 11 o’clock a. m. pursuant to adjournment as hereinbefore stated, the following proceedings were had: present, Judge Dillon and Mr. Sprinkle for plaintiff and no counsel appearing for defendant and there being no witnesses present, the commissioner adjourned a fur
Now while there are authorities to the effect that no rule of practice requires the notary or other officer before whom the depositions are being taken, to note the reason for making thé adjournment (see King v. State ex rel., etc., 15 Ind. 64; May v. Russell, 1 T. B. Monroe (Ky.) 225) the authorities in this State, as in some other jurisdictions, seem to contemplate such reasons shall be noted by the officer and preserved in the record to the end that the court may review the matter and determine the sufficiency or insufficiency of the reasons for prolonging the proceeding, if the question, perchance, shall arise for determination. If I understand the doctrine in this State and have been able to deduce the same accurately from the adjudicated cases, the rule is where the adverse party fails to appear at the taking of the depositions and continuances thereof are had, the record should show what was done on each day and the cause for continuance or adjournment. [Fox v. Carlysle, 3 Mo. 197; Bracken v. March, 4 Mo. 74; Owens v. Peyton, 70 Mo. App. 50; In re Chas. Green, 86 Mo. App. 216; Bowman v. Branson, 111 Mo. 343-349, 19 S. W. 634; Kiskaddon v. Grant, 1 Kan. 328; Kelly v. Martin, 53 Kan. 380; 13 Cyc. 923; 9 Am. and Eng. Ency. Law (2 Ed.), 339.] And it is for the court on review to determine whether the cause assigned was sufficient or insufficient in that behalf, as was done in a case in which the officers return noted as follows: “The taking of these depositions has been adjourned from the ninth of March from day to day by reason of bad weather,” which was adjudged by the Kansas City Court of Appeals to be an insufficient reason for the several adjournments. [Owen v. Peyton, 70 Mo. App. 50.]
In Bracken v. March, 4 Mo. 74-77, our Supreme Court intimated that if a witness had been subpoenaed and failed to appear in response thereto, such would no
In Bowman v. Branson, 111 Mo. 343-349, it was adjudged that the commissioner’s return should show affirmatively the depositions were not completed and for that reason the adjournment was had, in order to validate the proceeding, subsequent to adjournment, the opposite party not appearing. Now while it appears in the order of the commissioner in this case that the adjournment was had for the reason no witness was present, it does not appear therein that any witness was subpoenaed for that day or otherwise required to be present, nor does it appear that any .depositions had been taken on that day, nor that the depositions were not completed, and for that reason the adjournment was had. Of course the mere fact that no witness was present was no cause for adjournment unless one had been subpoenaed and further, the mere fact that a witness, although subpoenaed, was not present, was no reason for adjournment, unless the depositions were not completed. The facts that the witness was subpoenaed and did not attend, or that the depositions were not completed, must be affirmatively shown in the order of adjournment as reasons therefor. I am of the opinion, in view of the decided cases referred to, that the reason assigned in the order of adjournment therefor is insufficient to continue the authority of the commissioner after the meeting on May 9.
2. In view of the fact that no questions were pro
I concur in discharging the petitioner.
Dissenting Opinion
(dissenting). — The evidence taken on
the. hearing of this cause convinced me beyond a doubt that the taking of depositions in the cause of Ackerman v. Green was adjourned by the commissioner from day to day becausé of the impossibility of procuring the attendance of certain witnesses whom the plaintiff’s counsel desired to examine. These adjournments were in good faith and not. intended to harass or oppress the defendant or the witnesses. A subpoena was issued for Mrs. Green, but she could not be found. Another witness by the name of Joyce was subpoenaed, but it turned out that his brother was the person wanted. There was neither lack of diligence nor any wrong motive shown on the part of the plaintiff or his counsel. The conduct of the commissioner and his notations of the adjournments were sufficient, in my judgment, to keep in force the notice for the taking of depositions, even as against the defendant in the cause. Some strictness has been imposed by the decisions on the continu
Adjournments under such circumstances would not be ground to suppress depositions, but are valid under our decisions which are the strictest on the subject of continuing depositions that I have found. The good faith and even the necessity of the continuances are apparent; and these are all the facts the law requires for the jurisdiction of the officer to remain intact. [Bowman v. Branson, 111 Mo. 343, 19 S. W. 634.] The purpose of insisting on good cause for the continuance of the taking of depositions from day to day is, as said, to prevent the party not taking from further attendance than is necessary, in reason, to complete the testimony. Now it. seems to me to be outside the reason of the case to say a witness may look over the continuances from day to day and if he finds one was for insufficient cause, and that the opposite party did not thereafter appear, may refuse to testify. If the notary
I think no stress should be laid on the omission to propound a question to the witness. He had announced positively that the depositions were closed; that he was acting under the advice of counsel and would refuse to answer any question or give any testimony. He reiterated his determination several times and gave reasons for it having no relevancy to his personal privilege to refuse .to answer interrogatories which might incriminate him. The contempt of the witness was his refusal to testify. This is made so by the express words of the statutes. [R. S. 1899, secs. 2897 and 4658.] Moreover there was no pretense at the hearing that the petitioner would have answered proper questions, but a contention that he had the right to refuse to answer any.
For these reasons, I think he should be remanded into the custody of the sheriff.