187 Mo. App. 96 | Mo. Ct. App. | 1915
Harry B. Wolf appeals from an order of the circuit court of Jackson county, Missouri, made in a habeas corpus proceeding wherein the petitioner, Henry W. Whicker, was discharged, and an attorney’s fee of $10 together with the costs of the proceeding were taxed against the appellant.
Wolf tiled a suit in a justice court against the Minneapolis, St. Paul and Sault Ste. Marie Railway Company. The record is silent as to whether or not summons was ever issued and served on the defendant, and also as to whether said railway is a resident or foreign corporation, or has a line of railway in' Jackson county. On December 3, 1913, Wolf desiring to •take depositions in said case, attempted to give notice thereof to the defendant therein and went about it in this manner: He delivered a copy of such notice to Henry W. Whicker and endorsed upon the original of such notice an affidavit which, omitting jurat, is as follows:
“State of Missouri, County of Jackson — ss.
Harry B. Wolf, of lawful age, being duly sworn, upon his oath states that on December 2, 1913, he served defendant with a copy of within notice to take depositions, by delivering a copy thereof to Henry W. Whicker, its clerk, agent and servant in charge of its office at 441 Sheidley building, Kansas City, Missouri.
Harry B. Wolf.”
The notary before whom the depositions were to be taken issued a subpoena for Whicker and the same was served upon him. .When it was discovered that Whicker would not appear nor obey the subpoena, the notary issued an attachment for him, requiring the sheriff to take and keep him unless he should be discharged by due course of law, and upon such writ the sheriff took Whicker into custody.
Thereupon Whicker brought habeas corpus in the circuit court, The ground of Whicker’s objection to
After hearing the -evidence, the circuit court found that Whicker was being unlawfully restrained of his liberty and ordered him to be discharged, and ordered that an attorney’s fee of $10- be taxed in favor of Whicker and against Harry B. Wolf as the party litigant in the case of Wolf v. the said Railway in whose behalf the refused -evidence was required; and the court rendered judgment in favor of said Whicker and against Wolf for1 the said sum of $10 and the costs.
Appellant’s first contention is that the petition for a writ of habeas corpus was wholly insufficient. It may be remarked here that no attack whatever was made on the petition in the trial court. But we do not think the petition was insufficient. It- stated the fact of his being restrained and the facts by which such restraint came about, and alleged that the notary had no authority to take the depositions because no summons was ever served on defendant in the case in which the depositions were proposed to be taken and that no notice had ever been given defendant of the proposed taking thereof. Petitioner set out the facts as fully and as explicitly as it was possible for him to do. He could not be more explicit since the acts constituting the facts rendering the notary’s attempt to take depositions valid or invalid were all within the breast and knowledge of the plaintiff in the case in which the depositions were sought to be taken. The cases cited by appellant on the insufficiency of the petition have no application. In many of them, the petition had been directly attached in the hearing of the habeas corpus, and this fact is explicitly recited
The authority of the notary to take depositions depends- upon whether notice was served upon defendant in the case wherein the depositions are to be taken. He can only exercise his authority in pursuance of such notice. [In re Green, 126 Mo. App. 309, l. c. 317; Secs. 6392-4-6, R. S. Mo. 1909;]
There was no notice served upon the Railway defendant in the suit. Section 6394, Revised Statutes 1909, in relation to the service of notice to take depositions, says-: “In case the adverse party is a railroad . . . such notice may be served by delivering a copy thereof to any station agent of such railroad corporation.” If it be true that service of notice to take depositions on the local agent of a foreign corporation upon whom a summons to the corporation could be legally served is a valid service of such notice on the corporation, this does not help appellant. The return shows on its face that Whicker was not a station agent, so that the notice did not comply with sec
Aside from the question of the petition being insufficient, it is a nice question whether or not the return to the writ was sufficient to meet the charge of invalidity contained in the petition since it discreetly avoided stating anything which bore upon that charge. But the answer to the return reiterated that charge and, in effect, raised the issue to be tried and determined by the evidence upon a trial like any other issue. [In re Breck, 252 Mo. 302, l. c. 319.]
The circuit court had jurisdiction and has discharged the petitioner and such discharge, whether erroneous or not, is final and conclusive and not subject to appeal. [Ex parte Jilz, 64 Mo. 205; In re Breck, 252 Mo. 320.] This point is not adverted to by either side in the presentation or briefing of this case, nor were any authorities therein cited. But although nothing is said on this point, we assume that what appellant is really appealing from is the judgment against him for the $10 attorney fee and the costs. Since such a judgment as this was rendered,
Before closing however, we desire to say that the brief furnished by petitioner has given us very little help in arriving at a solution of the questions involved .in this case. We cannot commend the method adopted in preparing such brief. In fact, to merely say “the judgment of the trial court is plainly supported by the following statutes and decisions” and then cite in one unbroken list a full page of decisions, some of which are applicable and some are not, is no brief at all. If the heavy docket of this court and the labor of keeping up with it allowed us ample time to do wholly independent and original research work in the cases before us, it would doubtless be a pleasure to work cases out ourselves unaided by anyone. But since ample time
The judgment is affirmed.