State v. Lucksinger

79 Mo. App. 289 | Mo. Ct. App. | 1899

BOND, J.

On the third day of September, 1897, T. O. Collum sued Charles Eahner and Henry Lueksinger on two promissory notes for $500 each, and on the same day sued out an attachment on the ground that the defendants had fraudulently conveyed or assigned their property or effects so as to hinder or delay their creditors. A writ of attachment was issued the same day. The defendants were served and garnishments were served upon the McKittrick Milling Company, and also, as appears by the amended return of the sheriff, upon Henry Buecker. Plaintiff filed interrogatories, and thereupon filed a petition, verified by affidavit, alleging that Henry Lueksinger was in the possession of a note for $2,000 and other papers evidencing a fraudulent sale by him of his farm through an intermediate grantee to Henry Buecker, and prayed the court to impound said note and other papers with the clerk subject to the inspection of petitioner and his attorneys, on the ground that they were material evidence in the case pending. The court sustained the prayer of the petition, and made an order on December 1, 1897, commanding Henry Lueksinger to produce and deliver and impound with the clerk of the court, within twenty days from, the first of December, the note and papers referred to in plaintiff’s petition. Thereupon the defendant ■within the time specified in said order made the following answer:

1. “That said order should not have been made or granted for the reason that the order on its face shows that the court had no jurisdiction over the subject-matter mentioned in said order he further says that admitting for argument’s sake that this defendant had all said instruments of writing in his possession and control and that he was the true owner of the same at the time said order was made, the court had no power or authority to impound the instruments of writing mentioned in said order, they being the private papers of this defendant, or in other words the attaching process of the court can not be enforced by impounding evidences of indebtedness with the clerk and can only be enforced as pointed out by statute.

2. “And for another plea for not producing, delivering and impounding with the clerk of said court the note, deed of trust, power of attorney, other papers, documents and instruments of writing mentioned in said order, he says that he did not have said note-, deed of trust, power of attorney mentioned in said order, in his possession or under his control at the time the said order was made, nor has he since or now the same in his possession or control; he admits that he had such papers at one time in his possession, but he parted with the possession long before said order was made as they were not his property. As to the other papers, documents and instruments of writing mentioned in said order he says that said demand is too indefinite and don’t inform him of the precise papers, documents and instruments of writing he is required to produce.

“Having now fully complied with the order of the court in the premises he asks to be discharged.”

After hearing the evidence, the court ordered defendant Lucksinger to amend his above answer so as to state where said notes and papers were, and when he parted with them, with which order of the court the defendant Lucksinger refused to comply;whereupon the court held him in contempt and rendered a judgment that he be imprisoned in the county jail for five days, from which he appealed to this court.

contempt of court. The court clearly had jurisdiction to make the order requiring the defendant to produce the papers in controversy. Section 2177 of the Revised Statutes of Missouri, is to wit: “Every court or judge thereof shallhave power to compel any party to a suit pending therein to produce any books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defense therein.” The subsequent sections provide the procedure necessary to enforce this right, and authorize the court upon the failure a party to comply with its order to produce papers, “to punish him for a contempt.” E. S. 1889, secs. 2178, 2179 and 2180. In the case at bar the application for the production of the papers was in substantial compliance with the foregoing statutes, but we do not think the foregoing answer of the defendant to the petition to produce the papers in his possession showed any contempt of the court, since it stated in substance that he had parted with the possession of the note and papers described in the order of the court before it was made, and that they were not his property, which answer was also sworn to as required by the statute. R. S. 1889, sec. 2179; Glover v. Ins. Co., 130 Mo. 173; Railroad v. Wear, 135 Mo. loc. cit. 265. If the defendant had been on the witness stand, it would have been perfectly competent for the court to compel him to answer any legal or proper interrogatory, but the court had no> power to compel him to plead so as to furnish evidence for the opposite party. All the statute required him to do for a vacation of the order to produce the paper, was to deny “on oath” “the possession or control thereof.”

The only remaining question to be determined is whether or not the judgment against defendant was such an one as entitled him to appeal. At common law there was no review by appeal or writ of error of a judgment of a superior court of record in a contempt proceeding. Rapalje on Contempts, sec. 141; State v. Galloway, 5 Coldwell (Tenn.) 326. The power to punish contempts was deemed essential to the existence and authority of the court, and hence granted as a necessary incident in its establishment, and was equally available whether the contempt was direct or constructive or as otherwise designated criminal or civil. In either case the judgment of a court of-competent jurisdiction was final and conclusive. Rapalje on Contempts, sec. 21 and 22. In this- and many of the states the rule of the common law on this-subject is not enforced in its full rigor. With us appeals or writs of error, though not permitted in cases of direct con-tempts, may be taken from a final judgment in a matter of constructive contempt, to comply with an order for the-inspection of papers. Glover v. Ins. Co., 130 Mo. loc. cit. 184. The judgment in the case at bar sentencing the defendant to five days’ imprisonment was in its nature necessarily final, and therefore within the purview of our statutes allowing appeals. R. S. 1889, sec. 2246; Amended Acts 1895, page 91. For the foregoing reasons it will be reversed.

All concur.