98 P. 845 | Idaho | 1908
The petitioner, J. L. Niday, was adjudged guilty of contempt by the probate court of Ada county and committed to the sheriff of Ada county, to be held in custody by him until such time as he should produce certain letters and communications delivered to him by one R. E. Green. He thereupon applied to this court for a writ of habeas corpus; the writ was granted and the sheriff has made return thereto, and the petitioner has demurred to the return on the ground that it does not state facts sufficient to justify the sheriff in holding him. The contempt for which the petitioner was adjudged guilty grows out of the following circumstances :
There is, and for some time past has been, pending in the supreme court of the state of New York, for the county of Erie, an action wherein Nampa & Meridian Irr. Co. is plaintiff and John M. Satterfield is defendant. On June 22, 1908, the New York court issued and directed a commission to Walter S.
The first seven interrogatories propounded to the witness are as follows:
“1. State your name, age, residence and occupation?
“2. Are you acquainted with the defendant?
“3. Have you ever been employed by him as an attorney?
“4. If so, when did the employment begin and when did it end?
“5. State whether or not at any time since January 1, 1905, you have received into your possession from one R. E. Green of Nampa, Idaho, what purported to be letters or telegrams from the defendant to said R. E. Green in relation to any matter between the said defendant and the plaintiff, and particularly with relation to an accounting between said parties in regard to the revenue derived from the canal system in Idaho, known as the Ridenbaugh canal system for the year 1905 ?
*563 “6. If you answer the last preceding interrogatory in the affirmative, state when you received the documents therein referred to and also whether or not the same are still in your possession ?
“7. If you say they are in your possession, produce the same and attach them to your deposition and state that you have done so, or if you are unwilling to surrender possession of the originals, submit them to the commissioner for his examination and allow him to make copies thereof to be attached in place of the originals?”
The answers to those questions are as follows:
“To the first interrogatory, he says: J. L. Niday; age, 42 years; occupation, lawyer.
“To the second interrogatory, he says: Yes.
“To the third interrogatory, he says: Yes.
“To the fourth interrogatory, he says: About December, 1906, and is not yet terminated.
“To the fifth interrogatory, he says: Yes.
' ‘ To the sixth interrogatory, he says: About October 1, 1907, and they are still in my possession.
“To the seventh interrogatory, he says: I claim the letters referred to and the information therein contained as privileged communications between client and attorney, and I refuse to surrender possession of the originals or to permit copies made thereof, without the consent of the defendant, Mr. Satterfield.”
It will therefore be seen that the only question presented is that of the privileged or nonprivileged character of the letters and documents called for by interrogatory No. 7.
Subd. 2, see. 5958, Eev. Stat., under which petitioner claims these communications to be privileged, is as follows:
“An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.”
The rule seems to be well established that when an attorney declines to answer a question or produce letters or documents on the ground that the same are privileged, the burden is upon him to show sufficient facts and circumstances to establish the
“The burden is upon the party who seeks to have his statements suppressed as evidence, because they are privileged. The facts that would make them so must be proved. Where an attorney testified that he never understood ‘he was counsel, or to be counsel, in this matter, ’ etc., this took the statements made out of the list of privileged communications.”
In Carroll v. Sprague, 59 Cal. 660, the supreme court of California was considering a communication between attorney and client which was claimed to be privileged, and in passing on the question, said:
“But it was incumbent on the party who objected to the examination of Burt as to what Eckert had told him to show that the communication was privileged, and unless it was made when Eckert was seeking professional counsel, advice, or aid in relation to the same property, it was not privileged. It was not that Burt or Burt & Gale had ‘incidentally or otherwise done a great deal of business for Eckert. ’ The material question was whether any professional counsel, advice, or aid had been solicited or given in relation to this particular property. As to that we are left wholly in the dark.” (Sharon v. Sharon, 79 Cal. 678, 22 Pac. 26, 131; Earle v. Grout, 46 Vt. 113.)
In the case under consideration, the petitioner, in reply to the order to show cause why he should not be dealt with for contempt, did not attack the regularity of any of the previous proceedings, but, on the other hand, admitted that he had failed and refused to obey the order of the court, and based his
It appears from the findings and judgment of the probate court that evidence was taken at this hearing, but the same was evidently not reported and has not been produced here. The probate court, however, made findings of fact which were sent up with the returns in this case. Among those findings are the following statements of fact, which we must presume are based upon the return made by the petitioner and the evidence produced thereon:
“That the said letters were not communications from the said defendant, John M. Satterfield, to the said defendant, J. L. Niday, either in the course of professional employment as attorney for the defendant or at all, and were not communications to the said R. B. Green in the course of professional employment as attorney for defendant. That at or prior to the time said letters were delivered to the said J. L. Niday, said J. L. Niday had received no communication from the said John M. Satterfield of any character in relation to the matters involved in said action, and that at the time of delivering said letters to said Niday, said Green did not employ said Niday as attorney for said John M. Satterfield in relation thereto, neither did he request the professional advice or opinion of said Niday in relation to said matters as the agent of said Satterfield, nor was any evidence offered in this case showing that, said Green was agent for said defendant for said or any purpose. ’ ’
The petitioner’s own evidence given before the commissioner shows that he did not become the attorney for Satterfield until December, 1906, and that he did not come into possession of these letters until October, 1907. It nowhere appears that he was employed as Satterfield’s attorney by Green. The presumption is that he was employed by Satterfield directly. The letters in his possession were written by Satterfield to Green,
‘ ‘ Sec. 9. The officer taking the deposition shall have power to summon and compel the attendance of witnesses. In case of the refusal of a witness to attend or testify, such fact shall be reported by the officer to any probate or district court of the county, or the judge thereof, and such court or judge shall order such witness to attend and testify; and on the failure or refusal to obey such order, such witness shall be dealt with as for a contempt.”
“Sec. 10. The provisions of the last section shall extend to all officers and commissioners authorized to take depositions in this state to be read in the courts of other states or countries. ’ ’
It will be noticed from this statute that the same power is given to the probate court that is possessed by the district court to deal with witnesses for contempt in reference to attending and testifying before an officer taking depositions.
It is claimed, however, by the petitioner, that under the provisions of secs. 4750 to 4754, inclusive, of the Rev. Stat., justice’s courts and probate courts are limited in their power to punish for contempt to a fine not exceeding $100 or one day’s imprisonment, and that the probate court had no authority to make an order directing the imprisonment of the petitioner until he complies with the order of the court. Our statutes on contempt, both in justice’s and probate courts, as well as contempt of courts generally, were copied from the statutes of California. Secs. 4750 to 4754, correspond with secs. 906 to 910 of the Code of Civil Procedure of California, while sees. 5155 to 5168, inclusively, of the Rev. Stat., dealing with con-tempts generally, correspond with secs. 1209 to 1222, inclusively, of the Code of Civil Procedure of California dealing with the same subject. Sec. 4777, Rev. Stat. of Idaho, corresponds to sec. 925 of the Code of Civil Procedure of California with reference to the general provisions of the statutes
In Ex parte Latimer, 47 Cal. 131, the supreme court of California had under consideration the question as to the power of a justice of the peace to commit a person for contempt in refusing to obey an order of the court and directing that he be imprisoned until he complied with the order. The court there held that the provisions of see. 1219 of the Code of Civil Procedure of California are applicable to justices’ courts. Sec. 5165 of the Rev. Stat. of this state is identical with the last named section of the California code. Since these provisions, of the statute were copied from the California code, and had been construed by the highest court of that state at the time of their adoption by the legislature of this state, we are constrained to accept the construction placed upon them by the courts of the state from which they were taken. (Stein v. Morrison, 9 Ida. 426, 75 Pac. 246; O’Neill v. Potvin, 13 Ida. 732, 93 Pac. 20, 257.)
From what has just been said, we conclude that the sheriff’s return to the writ herein constitutes sufficient justification for his detention of the petitioner until he complies with the order of the probate court. The writ is quashed and the petitioner is remanded to the custody of the sheriff.