State ex rel. Lanning v. Lonsdale

| Wis. | Feb 3, 1880

LyoN, J\

1. The first question to be determined is, Has the circuit court for Fond dn Lac county jurisdiction to punish the appellant for contempt, because of his refusal, when giving his deposition, to answer the interrogatories put to him, and to produce the correspondence required of him? Counsel for the appellant assert that the court commissioner taking the deposition has power, under section 4066, E. S., to punish him for the alleged contempt, and they maintain that the jurisdiction to do so is exclusive.

If it be conceded that the power to punish for the contempt is conferred upon the commissioner, we are by no means satisfied that the same power may not be exercised by the court in which the action wherein the deposition was taken is pending, provided the commissioner, instead of punishing for the contempt, reports the facts to the court. But the view we take of the statute renders a determination of that point unnecessary.

Section 4066 reads as follows: “If any person, duly sub-poanaed and obliged to attend as a witness before any officer, arbitrators, board, committee, or other person authorized to examine witnesses or hear testimony, shall without any reasonable excuse fail to attend or to testify, as lawfully required, or to produce a book or paper which he was lawfully directed to bring by subpoena, or subscribe his deposition when correctly reduced to writing, upon sufficient proof of the facts by affidavit, any judge of a court of record, or court commissioner in the county, may issue an attachment to bring such witness before him, and then, unless such witness shall purge the contempt and go and testify, or do such other act as required by law, may by warrant commit him to the common jail of the county, there to remain in close confinement until he shall so testify, or do such act, or be discharged by order of such judge or commissioner, or according to law.”

In their note to this section the revisers say that it is “ section 2, ch. 125,1860, condensed.” Turning to the act of 1860, we find that its provisions relate exclusively to witnesses and testimony in proceedings before municipal boards or bodies, or before committees appointed by them, and have no application whatever to witnesses or testimony in actions or proceedings pending in the courts.

The language of section 4066, although quite general, furnishes support to the revisers’note: “If a person duly subpoenaed and obliged to attend as a witness before any officer, arbitrator, board, committee, or other person authorized to examine witnesses or hear testimony,” shall fail to attend or testify, etc. No judicial tribunal or officer is here named, and the section contains no express mention of testimony taken to be used in a judicial proceeding in the courts. Moreover, the section confers jurisdiction upon a judge of a court of record, or a court commissioner, to attach the witness, only . “ upon sufficient proof of the facts by affidavit.” This clearly contemplates a contempt committed in a proceeding before some tribunal or some person other than the judge or commissioner before whom the attachment proceedings are instituted. Had the legislature intended the section to include contempts by witnesses summoned to give depositions in judicial proceedings pending in our own courts, in view of the fact that -such depositions are very frequently taken before court commissioners, it is fair to presume that the power to attach a contumacious witness would have been expressly given to the commissioner taking the deposition. It must be remembered that this is a penal statute, and, for that reason, must be strictly construed. Hence, notwithstanding some general words contained in it, as “officer,” “other person,” “deposition,” and the like, it must be held that a judge or commissioner is not therein authorized to attach and punish a witness giving a deposition before him for refusing to answer proper interrogatories, if the deposition is being taken in a cause pending in a court of record of this state. A court commissioner is, however, authorized by statute (R. S., sec. 2433) to issue process of attachment to compel the attendance of witnesses who have been duly subpoenaed, in all cases in which he is authorized to take the depositions of such witnesses.

It should here be said that when the case of Stuart v. Allen, 45 Wis., 158" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/stuart-v-allen-6602624?utm_source=webapp" opinion_id="6602624">45 Wis., 158, was decided, we all supposed that the late revision confers the power upon court commissioners to punish for contempt in cases like tbis. Hence tbe statement to tbat effect at tbe close of tbe opinion. More careful consideration bas satisfied ns tbat we were in error. "We are inclined to tbink tbat section 4109, R. S., operates to extend tbe provisions of section 4066 to proceedings against a witness summoned to give bis deposition in a canse depending in another state or country, who refuses to answer all proper interrogatories. Tbe law which compels tbe citizens of tbis state to give testimony in such cases is founded in comity; and such testimony is, so to speak, extra-judicial as to our courts. A witness who unlawfully refuses to testify in a foreign cause, although be violates a penal law and is liable to punishment therefor, commits no contempt of- any court of tbis state. But inasmuch as tbe effect of section 4109 is not involved imthis case, although we have thought best to suggest a construction of it, we do not definitely determine the proper procedure to enfoi’ce its provisions.

It is further maintained tbat, tbe alleged offense having been committed in Milwaukee county, the appellant cannot lawfully be punished therefor in Fond du Lae county. We tbink tbe position untenable. It is provided by statute tbat “ every court of record shall have power to punisb by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct, by which tbe rights or remedies of a party in an action or proceeding depending in. such court, or triable therein, may be defeated, impaired, impeded or prejudiced, in the following cases: .... 5. All persons summoned as witnesses or garnishees, for refusing or neglecting to obey such summons, or to attend, or to be sworn, or to answer as 'such witnesses or garnishees.” R. S., 880, sec. 3477.

The refusal of the appellant to answer the interrogatories propounded to him, and to produce the required correspondence, may have impeded or prejudiced the relators in obtaining their rights and enforcing their lawful remedies in their action pending in the circuit court for Fond du Lac county against Reed. If the interrogatories were proper, or if the correspondence should have been produced, such a refusal was in contempt, not of the authority of the commissioner, or any tribunal in Milwaukee county, but of the authority of the circuit court for Eond da Lac county. The commissioner was acting for that court, was engaged in the discharge of its functions; and the offense of the appellant, if he was guilty of an offense, consisted in contemning its authority by obstructing a regular and orderly proceeding in an action pending in that court. We think that county lines have no significance in such a case, but that the court wherein the action is pending may lawfully take action upon the report of the commissioner, and make such order in the premises as will vindicate the authority of the court and protect the rights of suitors therein, no matter in what county of the state the offense was committed. This is our reading of tLe statutes on the subject; and, in the absence of statutory provisions, we cannot doubt the court would have the same power under well established common-law principles.

2. We next proceed to inquire whether the order from which this appeal is taken is authorized by law. The order does not purport to impose punishment for a criminal contempt, but it gives indemnity to the-relators by way of damages for injury or loss produced by the alleged misconduct of the appellant. Its validity depends upon sections 3490 and 3491 of the late revision, which are the same as sections 21 and 23, ch. 149, R. S. 1858. Unless the order can be sustained under these sections, it is irregular. For, whatever view may be taken of the inherent power to inflict criminal punishment for contempts, independently of the statute, it will not be claimed that the court may, without the authority of the statute, award indemnity to an injured party in a summary proceeding as for a contempt.

The construction and scope of the above sections were determined by this court, upon much deliberation, in Re Ida Louisa Pierce, 44 Wis., 411" court="Wis." date_filed="1878-01-15" href="https://app.midpage.ai/document/in-re-pierce-6602541?utm_source=webapp" opinion_id="6602541">44 Wis., 411. In the opinion in that proceeding, it is -said of those sections: “ It is very clear that the ‘loss or injury’ of the statute is a pecuniary loss, or injury to rights for which compensation maybe made in money; a loss or injury which would entitle the injured party to maintain an action against the offender to recover damages for his misconduct. This is made apparent by the last clause of section 21, which renders the payment of the indemnity a bar to such an action.” The court adheres to the construction which it there gave to the statutes concerning contempts; and-while it freely concedes, what it never questioned or doubted, that the power to punish for contempt was not conferred in the first instance by statute, but inheres in the court, it holds that whenever a statute prescribes the procedure in a prosecution for contempt, or limits the penalty, the statute controls.

The question arises, therefore, Can the relators maintain an action against the appellant to recover damages resulting from his refusal to answer the interrogatories put to him, and to produce the required correspondence?

Section 4063, E. S., gives, or at least recognizes, a right of action by the aggrieved party against a person duly subpoenaed as a witness and obliged to attend, who fails to do so without reasonable excuse, to recover the damages occasioned by such failure. Eut neither the statute nor any adjudged case that has come to our notice, recognizes such right of action against a witness for refusal to answer proper questions. It may be, however, that in special cases such an action can be maintained on common-law principles. But it seems to us it can only be maintained (if at all) for some special damage resulting from the unlawful refusal of the witness to testify. Eor example, such refusal might compel a party to take a continuance on terms. The continuance costs would probably be the measure of damages. If such an action can be maintained in any case, we think the recovery will be limited to the actual, direct, tangible damages; and that the mere refusal to testify, unac-eompanied by sucb damages, is not a' ground of action. And we think, also, that no recovery can be liad in such an action, based upon the possibility or probability that, had the witness testified fully, the judgment would have been more favorable to the aggrieved party than it was. Such damages are altogether too uncertain and conjectural to furnish a ground of action.

In this proceeding it does not appear that the relators suffered any special pecuniary loss or injury by reason of the alleged misconduct of the appellant. The order gives them indemnity only to the extent of their expenses in prosecuting the contempt proceedings. Had the proceeding resulted in punishment for a criminal contempt, it seems certain that the relators could not recover such expenses in an action against the appellant.

In whatever aspect we view- the case, we are unable to find in it any feature which brings it within the statute authoriz,ing the court in such proceedings to adjudge indemnity to the aggrieved party instead of imposing a fine upon the offender. We must hold, therefore, that the order is unauthorized by law, and for that reason it must be reversed.

3. The ground upon which the appellant refused to answer was, that his answers might tend to accuse him of crime and subject him to a penalty; that is to say, they might tend to show that he had been guilty of publishing or circulating a libelous document, which is a misdemeanor. The rule of law on this subject was stated by Dixon, C. J., in Kirschner v. The State, 9 Wis., 140" court="Wis." date_filed="1859-07-20" href="https://app.midpage.ai/document/kirschner-v-state-6597837?utm_source=webapp" opinion_id="6597837">9 Wis., 140, as follows: “Although the witness is the judge of the effect of his answer, and is not bound to disclose any facts or circumstances to show how the answer would affect him, as that would defeat the rule and destroy the protection afforded by the law, yet the court is to determine, under all the circumstances of the case, whether such is the tendency of the question put to him, and whether he shall be required to answer; as otherwise it would be in the power of every witness to deprive parties of the "benefit of his testimony by a merely colorable pretense that his answers to questions would have a tendency to implicate him in some crime or misdemeanor, or would expose him to a .penalty or. forfeiture, when it is clear, as we think it was in this case, that the questions have no such tendency.”

"We do not think it proper to pass definitely upon the character of the communication which is charged to be libelous, or to say whether or how far it is privileged as respects Mr. Reed. These are questions which should regularly be determined in the libel suit. Eor the purposes of this appeal we are inclined to think that it was conditionally privileged in the hands of the appellant or his principals, and that they might lawfully make known its contents confidentially to their subscribers seeking information of the financial standing of the relators, provided they did so in good faith- — -that is, without malice and in the belief that the statements therein contained were true.

There is nothing in the record before us tending to show that the appellant has made known the contents of this communication to any person other than the subscribers of the agency ; and the fidelity with which he has guarded and kept the secrets of the agency in this proceeding is strong evidence that he has not. In order to hold that the answers of the appellant (provided he answers that he has the communication charged to have been made by Reed to the agency, and produces it) will or may tend to expose him to a criminal charge, we must assume that he has made an improper use of the communication. "We do not perceive how we can so assume on this record, when there is not the slightest evidence of the fact, and when all reasonable probabilities are against it.

It is not deemed necessary to enlarge on this subject, because another effort to obtain the required testimony may disclose an entirely different state of facts.

4. It is deemed advisable to state briefly what we regard tbs proper practice in cases of this kind, and tbe statement will disclose another irregularity in this proceeding.

When the officer taking the deposition of a witness to be used in an action pending in a court of record of this state, reports to the court in which such action is pending, that the witness has refused to answer certain interrogatories propounded to him, the court should, on application of the aggrieved party, grant an order that the witness show cause why he should not be required to answer such interrogatories. On the return of the order, if the witness does not admit his refusal to answer, proper interrogatories in that behalf should b.e served upon him. If it appear by his admission, or by his answer to the interrogatories, or by proof, that he has so refused, the court will decide whether he ought to answer the questions which he has refused to answer; and if it is held that he ought, the court will make an order requiring him to go before the officer and make answer thereto; and in such case the court in its discretion may impose upon him the costs of the proceeding. For disobedience to such order the court should, on proper proceedings, punish the witness as for a criminal contempt.

The practice here indicated prevails in courts of equity, and does not seem to contravene the provisions of any statute. It is also eminently just to the witness. Bradshaw v. Bradshaw, 1 Russ. & Mylne, 358; 2 Dan. Ch. Pl. & Pr., 891, and eases cited; Stuart v. Allen, 45 Wis., 158.

Other questions were argued by counsel, but we do not find it necessary to determine them. Those already determined are decisive of this appeal.

By the Court. — Order reversed.