Wehrs v. State

• Citation: 132 Ind. 157,31 N.E. 779
• Parties: Wehrs v. State.
• Decision Date: 13 September 1892
• Court: Supreme Court of Indiana

132 Ind. 157

31 N.E. 779

Wehrs

v.State.

Supreme Court of Indiana.

Sept. 13, 1892.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

William Wehrs was convicted of contempt of court, and appeals. Affirmed.Allen Zollars and B. S. Calvert, for appellant. J. M. Robinson, W. G. Colerick, and Henry Colerick, for the State.

COFFEY, J.

On the 1st day of June, 1891, Phillip Miller instituted suit in the Allen county superior court against the Pennsylvania Company, seeking to recover damages on account of a personal injury received by him while employed as a laborer in the shops of the company. He sought to take the deposition of the appellant and other witnesses, to be used on the trial of such actions, and for that purpose served upon the solicitor of the company a notice that he would, at a given time and place, proceed to take such depositions. On the day named the appellant appeared as a witness, with others, and the company also appeared by its attorney. Miller having propounded questions to the witnesses present calculated to elicit evidence material to the issues in his suit against the company, the company, by its attorney, objected to the witnesses answering, upon the ground that Miller had no right, at the time and in the manner attempted, to take the depositions of such witnesses, instructed them not to answer, and, under such instructions, the witnesses refused to answer the questions propounded to them. Upon such refusal the notary public before whom it was sought to take the depositions reported the fact to the court in which the cause was pending, and, in answer to a rule to show cause why they should not appear and give their depositions, the appellant and others appeared and filed an affidavit, showing, among other things, that he was a married man, residing on his own property, with his family, in the city of Ft. Wayne, with no intention or purpose of leaving the city, either permanently or temporarily; that at the time of the injuries set out in the complaint he was, and still is, in the employ of the Pennsylvania Company, working in its shops at the city of Ft. Wayne; that he had been informed by the attorney for that company that he would be called and used by it as a witness on the trial of the cause between it and Miller; that he was in good health, had never been sick, was only 32 years old, and was not likely to get sick before the cause could be tried; that he had not been threatening to, and would not make any effort to, avoid the process of the court requiring him to be present as a witness at the trial of said cause, but, on the contrary, would appear at the trial and testify to the truth as he understood it; that he had been informed, and believed, that if his deposition was taken it could not be used on the trial; that he was informed, and had good reason to believe, that Miller was endeavoring to take his deposition, not for the purpose of using it as evidence on the trial of the cause, but simply for the purpose of discovering in advance what the testimony of the company would be on the trial of the cause. In answer to this statement Miller filed an affidavit, in which he stated that the witnesses whose depositions he sought were the only witnesses to his injury, except one Craig, who had left the state, and whose residence was then unknown to him; that he was seeking to take their depositions in order to secure the production of their evidence in his cause, and for the purpose of securing justice on the trial. The court entered an order requiring the appellant and the other witnesses to appear at a time and place named, and give their depositions. With this order the appellant refused to comply, for which disobedience he was fined and imprisoned by the court. By this appeal he seeks to reverse the judgment of the court in thus punishing him as for a contempt. His position, briefly stated, is that, inasmuch as there existed no state of facts at the time Miller sought to take his deposition which would authorize him to read it when taken, he was not bound to submit to an examination. In other words, that a deposition cannot be taken, under the terms of our statute, unless such a state of facts exists at the time as would render the deposition admissible in evidence. This question involves the construction of our statute upon the subject of taking and reading depositions in evidence on the trial of causes in the courts of this state. Section 423, Rev. St. 1881, provides that, “in all actions, depositions may be taken by either party, in vacation or term time, at any time after service of summons, without order of court therefor. The...