251 Mo. 452 | Mo. | 1913
Plaintiff, an attorney at law, sued Laura E. Keller and James W. Boyd, her attorney, for false imprisonment, with the averment that the acts complained of were without excuse or provocation and maliciously done, laying his damages at $10,000 actual and $25,000 punitive.
Questions here seek a resume of pleadings and facts.
The pleadings.
Summarized, the petition avers that on a given date there was pending in Judge Mosman’s division of the Buchanan Circuit Court a suit entitled Keller v. Roth et al. (it turns out that a certain named bank was co-defendant with.Roth; for convenience we will call that defendant “the bank”). That Mr. Boyd represented Mrs. Keller in that suit; that when the case was called for trial, plaintiff refused to announce ready and the case did not go to trial; that at that time defendants herein, who were attorney and client in the Keller-Roth suit, “persuaded and induced” Judge Mosman to permit them to ask this plaintiff questions concerning certain tax bills; that plaintiff had been subpoenaed in the Keller-Roth suit to appear as a witness and have with him certain described tax bills; that he'appeared in obedience to said subpoena duces tecum. That the questions said judge permitted the present defendants to ask concerned the possession and disposition of said tax bills ‘prior to the service and issue of such subpoena; that plaintiff refused to answer them; that the Keller-Roth case was not on trial, such questions were not legally before Judge Mosman as a judge or court; that having refused to order plaintiff to answer the questions the present defendants continued asking them and “persuaded and induced” Judge Mosman to order plaintiff to answer them, which plaintiff refused to do; thereupon the present defendants persuaded and induced Judge Mos-
The joint answer of Mrs. Keller and Mr. Boyd admits the Keller-Roth suit was pending, that defendant Boyd was attorney for .Mrs. Keller and that the subpoena duces tecum was issued for Mr. Shull requiring him to bring designated tax bills into court for use in the trial of that suit. It is next averred that the object and nature of the Keller-Roth suit was to cancel said tax bills and their lien upon certain real estate; that the bills were necessary to the trial; that the circuit court had full jurisdiction of the suit, parties and witnesses; that plaintiff refused to bring- in the tax bills then in his possession; thereupon he was sworn to testify in regard to the matter and proper questions were asked him by said judge respecting his said failure and his custody and control of the bills, which in
A reply was filed, hut what it admitted or denied, or its scope or character in any respect, is not at all disclosed.
The facts.
The abstract is made from stenographic reports of the testimony of two hearings, wide apart, one'the contempt case, the other the instant case for false imprisonment. They do not always clearly indicate at which hearing this or that testimony was elicited, so they have discursive running comments, arguendo, by Mr. Shull when on the stand in the contempt proceeding, either poorly reported or loosely delivered, resulting in a record made up in part of what Lord Chief Justice Holt once called ‘‘skimble-scamble stuff.” It is not a light task to separate the wheat from the chaff, i. e., fact from comment. Doing the best we can, a summary of the facts follows (we use respondent’s abstract, for that is perfect; appellant’s is not):
Two attorneys, Carolus and Bothwell, represented plaintiff in the Keller-Roth suit at the outset, Mr. Boyd coming into the case finally to assist. There is some mystery about the attorneys representing defendants. Of record, Warren Rogers, Esq., who officed with Mr. Shull, represented them. But Mr. Shull testified he also had authority to appear or not as he chose. His name was not signed to the pleadings and it would seem at the outset he desired to keep in the background any professional relation to the suit, if he had any. At a time dark, Mr. Shull was employed by a
Mr. Shnll had the bills for two or three weeks until he parted with them in the few minutes of time elapsing between the time he knew they were needed (and knew Mrs. Keller was taking legal steps to get them), and the time the subpoena was served. The following questions and answers will further elucidate Mr. Shull’s position and motives:
“Q. You kept possession of the tax bills until shortly after noon of the day of the hearing? A. Just as quick as we walked down from the court room, they were deposited in the mail; that was before any subpoena was served, Judge Culver.
“Q. You knew these tax bills were involved in that suit? A. Yes, sir.
“Q. You understood that was a suit to cancel the tax bills if they were held void? A. Yes.
“Q. You knew that in order to try that cause those tax bills should be in the court room, did you not? A. Well, that depends. . . .
“Q. Didn’t you think it was proper, at least, it (the tax bill) should be there? A. I didn’t consider one way or the other.
“Q. Now, will you tell how you expected the plaintiff in that suit to prove that there were tax bills ? A. He was running his side; I was not supplying anything on behalf of the plaintiff; I was not running his side.
“Q. I am trying to find out what was in your mind. A. I don’t know that I had anything in my mind on that subject.
“Q. You refused that day to tell where these tax bills were? A. Yes, sir.
“Q. And you knew that they were involved in that litigation? A. Yes, sir.
“Q. And you knew it was proper, at least, as you say, to have those tax bills in the court room when.*465 that case was tried? •• A. I said I didn’t think it was-improper.
“Q. Did yon know it would be proper? A. It would do no harm, but it wouldn’t be essential. . . -
“Q. You understand now, don’t you, that it is-preferable to have the original paper involved in a. suit in the court room? A. Sure, it is preferable.
“Q. And you understand that it is the duty of' the attorney to try to produce it in the court room?'A. Just as he pleases.
“Q. Don’t you understand that he must? A. I like to pursue the preferable course and it was preferable to me not to bring them. . . .
‘ ‘ Q. Did you have any information or knowledge-whatever on the subject as to whether or not these tax bills were owned by Mrs. Roth, or Eva Roth, to whom they were issued, or had been assigned to some one else? A. Verbally, or ih writing?
“Q. Any way? A. Verbally I knew they belonged to Mr. Crowley, but' whether there was anything on the back indicating that I don’t know.
“Q. You received them from'the president of the-Bank of North St. Joseph? A. Yes, sir.
“Q. That is the same bank that was named as a. party defendant in that suit before Judge Mosman?’ A. Yes, sir.”
A few minutes after Mr. Shull had thus designedly put it out of his power (as he thought) to respond to. that part of the coming subpoena requiring the production of these challenged tax bills, the subpoena duces tecum was seryed upon him calling for their production. It is apparent that matters had moved off at a smartish pace. For Mr. Shull estimates in one answer the time of the service as “two minutes” after mailing the bills in a mail box in his office building. After lunch Mr. Shull appeared at the court house in response to the subpoena. In the forenoon prior to its
There was an attempt to show on cross-examination that Mr. Shull courted his arrest, or expected to profit by it. We lay no deciding stress on it, but let it speak for itself, thus:
“Q. Mr. Shull, did you state to Mr. Hardcastle at the time he arrested you that that would make you circuit judge, the fact that you were arrested? A. No, for I never had any intention of being a candidate.
“Q. Did you state that to him in substance? A. If I did it would have been a pure joke; I have no*469 recollection of anything of the kind hut I might have said it as a pure joke.
‘‘Q. Did you make that statement to the sheriff or .any of his deputies? A. I say no, no recollection of it.
“Q. Never made that statement? A. If you would call my attention to something — I might have .said it, it might have been a joke, if it was said it was & pure joke; anybody jokes about things — better do that than cry, but I want to tell you I was not in any frame of mind for joking and don’t think I did.”
The clerk of the court testified that when Mr. Boyd presented the form tp the court, it was examined, interlined and corrected by Judge Mosman, that is, it was then dictated to the clerk by the judge and rewritten. As said, as we read the record Mr. Boyd was not there at the time and had nothing to do with the contempt judgment or subsequent arrest except to hand up the form he had prepared at the court’s request, and to ask the questions outlined and to argue for their competency.
As in his petition Mr. Shull lays some stress on the fact he is an attorney, and as he appeared at this •or that time not only as a witness, but as an attorney for himself in the contempt proceedings, it may be well to go back a little and bring forward the record showing that he was proceeded against as a witness .and not as an attorney in the contempt proceeding. At one place he says: “I can keep them” (the tax bills) “in my pocket until that time, until we are in the -trial and he needs them as evidence. I don’t want to be jumped onto the witness stand in the matter.”
At another place this:
“Well, I was subpoenaed and accepted service of the subpoena; now if you announce ready for trial— whenever you announce ready for trial, I will be ready for business. That is all this subpoena requires me to be here for. ...
*470 “The Court: "Well, I have not indicated — that yon can announce before knowing about the papers.
“Mr. Shull: Upon the trial of the cause to have me produce certain papers — now then, your honor, if they have a cause the first thing for them to do is to go forward with their case. If they have a case that is hanging here in court which they desire to try, they know that their witness is standing in the court room.
“Mr. Boyd (interrupting): Mr. Shull is nothing, but a witness.
“The Court: Do you want him as a witness'?
“Mr. Boyd: Tes, sir.
“The Court: Be sworn.” "
At another place this appears:
“I-am not here except under the process issued by this court. When I am called as a witness I will be here.
“The Court: They have a right, Mr. Shull, to know whether all papers are present before they make their announcement. They have the right to ask the question as to whether you have the paper; that I think — ■
“Mr. Shull: I don’t believe I ever saw a case where they have the right to demand—
“The Court: This is the time right now when they are ready to announce and it depends, as I understand it, upon the possession of the papers being with you — whether they can announce or not; under those circumstances they have, I think, the right to require an answer of you; whether you will produce the papers; I think that is their privilege.”
There were objections sustained to the introduction of testimony, but none of those rulings are now assigned for error except the exclusion of appellant’s testimony tending to show that Mr. Boyd prepared the sheriff’s return to the writ of habeas corpus issued by this court.
Such is the case on the facts.
On such record we are of opinion the judgment must be affirmed. Because:
(a) As we gather it, In re Shull, 221 Mo. 623, is somewhat relied on by appellant as filling the office of an adjudication on the merits of the contempt case. We dispose of that contention in limine.
Two questions were put to us in that case, to-wit:
First: Piad Judge Mosman’s court jurisdiction to adjudge a contempt against Mr. Shull before the Keller-Roth case was actually on trial on the merits?
Second: Was the warrant of commitment under which Mr. Shull was incarcerated irregular in form or substance ?
The point is disallowed to respondent.
The point is disallowed to appellant.
(d) Appellant’s main contention is that the court was without jurisdiction of him as a witness, prior to-an announcement of “ready,” to investigate the presence of the tax bills in court under the subpoena duces tecum, hence the judgment against him was coram non judice. It is agreed on all hands that if the court had jurisdiction then Mr. Boyd could not be guilty of aiding, abetting or participating in an attempt outside of the law to imprison Mr. Shull. The question has several angles, thus:
“The right to resort to means competent to compel the production of written, as well as oral, testimony, seems essential to the very existence and constitution of a court of common law, which receives and acts upon both descriptions of evidence, and could not possibly proceed with due effect without them. And it is not possible to conceive that such courts should have immemorially continued to act upon both, without great and notorious impediments having occurred, if they had been furnished with no better means of obtaining written evidence than what the immediate custody and possession of the party who was interested in the production of it, or the voluntary favor of those in whose custody the required instruments might hap-_ pen to be, afforded.”
In a lofty conception of the administration of justice is there room for the pestiferous notion that a trial is a trap to catch a party litigant? Must he announce ready before he knows the process of the court has been obeyed, which said process, in turn, is the only means the law provides for getting ready? Is he to announce ready only to find in the thrall and throes of the trial, when too late to help himself, that papers essential to the hearing were not produced under a timely subpoena? Would a party in such fix be entitled to a continuance when he had not used diligence by way of inquiry in preparation for trial, or must he be cast as of course because he cannot go on, absent the papers? We all know it is the immemorial right of courts to see that their process has been obeyed as a preliminary to the actual trial itself. To that situation the maxim applies: Cursus curiae est lex curiae.
Indeed appellant, as we read the record, was willing to be sworn and to be questioned whether he had the papers. His position is that the power of the court
Speaking of a subpoena duces tecum, Sharkey, J., in Chaplain v. Briscoe, 13 Miss. 1. c. 208, says:
“By the writ of subpoena duces tecum, the witness is compelled to produce all documents in possession, unless he have a reasonable excuse to the contrary, of the validity of which excuse the court, and not the witness, is to judge. [3 Stark, on Ev. 1721.] ”
It was ruled in Denton v. Erwin, 5 La. Ann. 18, that courts are bound to vindicate and maintain the sanctity of their judicial proceedings before they consider the merits of cases.
In Bull v. Loveland, the Supreme Court of Massachusetts, 27 Mass. 1. c. 14, speaking through Chief Justice Shaw, made this apposite pronouncement:
“There seems to be no difference in principle, between compelling a witness to produce a document in his possession, under a subpoena duces tecum, in a case where the party calling the witness has a right to the use of such document, and compelling him to give testimony, when the facts lie in his own knowl*476 edge.. It has been decided, though it was formerly doubted, that a subpoena duces tecum is a writ of compulsory obligation, which the court has power to issue, and which the witness is bound to obey, and which will be enforced by proper process to compel the production of the paper, when the witness has no lawful or reasonable excuse for withholding it. [Amey v. Long, 9 East, 473; Corsen v. Dubois, 1 Holt’s N. P. R. 239.] But of such lawful or reasonable excuse the court at nisi prius, and not the witness, is to judge. And when the witness has the paper ready to produce, in obedience to the summons, but claims to retain it on the ground of legal or equitable interests of his own, it is-a question to the discretion of the court, under the circumstances of the case, whether the witness ought to produce, or is entitled to withhold the paper.”
In this case the court had jurisdiction of the subject-matter of the Keller-Roth suit; it had jurisdiction of the parties to that suit; it had jurisdiction to issue the subpoena duces tecum; by the issue and service of that subpoena it acquired jurisdiction of Mr. Shull and his refusal to answer was an act in facie curiae. That by necessary implication it had jurisdiction to-decide questions incident' to the essential and usual steps in that suit preceding the trial, I think is without a shadow of doubt. The production of the papers was as essential as the production of the witness and for this court to say that the nisi prius court had no»
Furthermore, under such erroneous view of the law an attorney, who had invited a subpoena duces tecum (as here) and who knew he would thereby be required to produce papers instanter (as here) could, by the swift artifice of getting a little ahead of the officer’s service, toss them in a pigeonhole or coal scuttle or slip them to a friend and not only stand acquit under the formula “I have not got them,” but thereby he could impede the trial on one hand and thwart justice to the scandal of its administration on the other.
The inquiry in this instance did not go beyond reasonable bounds. There was need of one. The court exercised uncommon patience at a waste of time. Appellant’s acts were so inexcusable and regrettable that any commentary on those facts would weaken their effect.
Moreover, the maxim is: the incidents of the thing follow tacitly. [Beheret v. Myers, 240 Mo. 1. c. 79.] Assuming that the court had the power to bring in the papers, as we do, then an incident of that power would be to see if they had come (or could be had), .and sift and weigh any excuse offered. It has always been the rule that when a clear main power is granted "by the law, everything necessary to make it effectual to attain its principal end is necessarily implied. A grant of power is to be construed so as to include the authority to do all usual things necessary to accomplish the object so granted. In re Sanford, 236 Mo. 1. c. 692, may be consulted with profit on this head for our Brother Woodson has there marshaled the aufhorities on that rule of construction. The application
The premises considered, we rule that information sought for by the questions was proper and within the jurisdiction of the court, that the witness could be lawfully required to give it, failing in which and thereby obstructing and impeding the proceedings he was subject to the pains and penalties prescribed for refusing to answer. [R. S. 1909, sec. 6372; Burns v. Superior Court, 140 Cal. 1.]
The mere fact that the warrant of commitment was irregular on its face in not complying with the statute, cannot be held to hark back and destroy the jurisdiction of the court to an extent making all participating in the hearing guilty of a trespass.
We concede to appellant the general principle that all wrong-doers who aid, abet or participate in a trespass are liable, and pass by without discussing the
But we liave pursued tbe matter far and, tbe premises all in mind, nothing is left but to pronounce judgment wbicb we now do, viz., tbe demurrer was well ruled and tbe judgment, nisi, should be affirmed. It is so ordered.