Bagley v. District Court in and for Cerro Gordo County

• Decision Date: 03 April 1934
• Docket Number: 42420
• Parties: W. G. C. BAGLEY et al., Petitioners, v. DISTRICT COURT OF CERRO GORDO COUNTY et al., Respondents
• Court: Iowa Supreme Court

254 N.W. 26

218 Iowa 34

W. G. C. BAGLEY et al., Petitioners, v. DISTRICT COURT OF CERRO GORDO COUNTY et al., Respondents

No. 42420

Supreme Court of Iowa, Des Moines

April 3, 1934

Certiorari to Cerro Gordo District Court.--M. F. EDWARDS Judge.

Proceedings in certiorari to test the right of the plaintiff to take the testimony of adverse parties to the action in the form of depositions.--Writ sustained.

Writ Sustained.

Davis McLaughlin & Hise and Smith & Feeney, for petitioners.

F. A Ontjes and E. G. Dunn, for respondents.

STEVENS, J. CLAUSSEN, C. J., and EVANS, ALBERT, KINDIG, ANDERSON, MITCHELL, and DONEGAN, JJ., concur. KINTZINGER, J. (dissenting).

OPINION

STEVENS, J.--

On the 24th day of December, 1930, F. A. Ontjes, in his own behalf and that of all others similarly situated, filed a petition in the district court of Cerro Gordo county naming numerous of the petitioners in this proceeding as defendants. Among the defendants thus named were Hanford MacNider, Peter Anderson, and W. G. C. Bagley. The cause of action stated is somewhat involved, but is an attempt of the plaintiffs therein, as stockholders of the Northwestern States Portland Cement Company, a West Virginia corporation, to prevent certain changes or reorganization of the corporation upon the basis of plans proposed. No question as to the exact character or scope of the issues tendered in the aforesaid petition is involved in this proceeding.

Subsequently, the plaintiff Ontjes filed a motion to take part of the evidence in the form of depositions. This motion was accompanied by a written election on the part of the plaintiff to take part of the evidence in the original action in the form of depositions. The court, in a rather obscure order, apparently sustained the plaintiff's motion to take a portion of the evidence in the form of depositions. Some time later, the statutory notice for the taking of the depositions of the parties named, with others, was served upon counsel for the adverse parties. The notice named as witnesses, whose deposition it was proposed be taken, the defendants Hanford MacNider, Peter Anderson, and perhaps others. Objections were interposed by these defendants to having their testimony taken in the form of depositions and the parties above named finally refused to be sworn or to give any testimony before the notary public duly commissioned to take the testimony. Thereupon, application was made by plaintiff to the district court for an order to compel the parties named to obey the prior order of the court permitting testimony to be taken in the form of depositions. A resistance was filed by the parties to this application, but same was overruled by the court and the order complained of entered.

Thereupon, this original proceeding in certiorari was commenced in this court to test the legality of the order issued by the district court to compel the parties to permit their depositions to be taken.

Numerous grounds of alleged illegality are assigned by petitioners designed to excuse their failure and refusal to obey the order of the court. The petitioners herein include the Northwestern States Portland Cement Company of West Virginia, the Northwestern States Portland Cement Company, a corporation of the state of Iowa, in addition to the parties already named.

First, it is contended by petitioners that the respondent district court was without jurisdiction or authority to command petitioners, all of whom, as stated, are parties to the original action, to submit to have their depositions taken in behalf of their adversary. Parties to actions are competent witnesses to give testimony, the same as any other human being having the capacity to understand the obligations of an oath. This has been true in this state since the enactment of section 3978 of the Revision of 1860 at least.

It was not sought in the proceeding below to take the deposition of parties in their own behalf, but by and in behalf of their adversaries. There is no statute in this state which, in express terms, permits one party to an action to compel the adverse party to submit to the taking of his depositions. It is the general rule in most other jurisdictions that, in the absence of statute so providing, the deposition of a party may not thus be taken. Union Mortgage Co. v. Rocheleau, 51 R.I. 345, 154 A. 658; Tilden-Thurber Corporation v. Farnell, 43 R.I. 42, 110 A. 399; Winter v. Elmore, 88 Ala. 555, 7 So. 250; McAfee v. Commonwealth, 173 Ky. 83, 190 S.W. 671, L. R. A. 1917C, 377; Kwiatkowski v. Putzhaven, 189 Ind. 119, 126 N.E. 3; Kreider v. Wisconsin River Paper & Pulp Co., 110 Wis. 645, 86 N.W. 662; Hill v. Thomas B. Jeffery Co., 292 Ill. 490, 127 N.E. 124; Roberts v. Parrish, 17 Ore. 583, 22 P. 136.

Perhaps it would be more accurate in this connection to say that, in most of the foregoing decisions, a statute permitting the taking of the deposition of the adverse party was involved.

It is the contention of respondent that statutes have been enacted in this state fully authorizing and justifying the proceeding below. First, it is urged that the legislature has made parties to actions competent witnesses in all judicial proceedings; that the elimination of all prior restraints upon parties to testify as witnesses in their own behalf has given them the exact status of any other witness. The Supreme Court of Kansas in Lawson v. So. Fire Ins. Co., 137 Kan. 591, 21 P.2d 387, so held. Perhaps Roberts v. Parrish, supra, also tends in some measure to support appellee's contention.

Our attention is also called to section 11358 of the Code of 1931, which provides in part that "if the action is triable by equitable proceedings, then without any other reason therefor either party may so take the deposition of any witness." Obviously, the term "witness" and "party" may not be used interchangeably. A party may be made a witness upon the trial in behalf of either party, but a witness in common parlance is by no means necessarily a party. Parties are usually defined as those actually interested in the subject-matter of litigation having a right to make defense, support his cause of action by testimony, examine and cross-examine witnesses, and to appeal from an adverse decision. Canton v. Ross, 157 Miss. 788, 128 So. 560. If it was the legislative intention, by the enactment of section 11358, to empower a party to take the deposition of his adversary, it is the testimony of witnesses that is authorized to be taken--to be taken by whom? either party to the action. It would seem that, if the legislature intended to enlarge or extend the right of one party to take the deposition of his adversary, it would have used somewhere near apt language in expressing such intention. The precise question here presented has apparently not previously arisen in this jurisdiction in an equity case. It has arisen in at least two actions at law. Speaking to the point in Meikle v. Hobson, Judge, 167 Iowa 666, 149 N.W. 865, this court said:

"The primary purpose of the statutes declaring who are competent as witnesses, and providing the means for procuring their presence at the trial or their testimony by deposition, is, as indicated by the quoted language, that the parties may avail themselves of all material evidence bearing upon the action. The position of counsel for respondent is that under the law every human being is a competent witness, unless for some qualification stated in the law; that a party to an action is a competent witness; and that the provision for taking the deposition of a witness must therefore apply alike to an ordinary witness and to a party to the action and for a failure to obey a subpoena issued for that purpose the penalty for contempt may be inflicted. The different statutes which we have cited do not in express terms grant to the opposite party the right to take the testimony of his adversary by deposition; but do provide that he is entitled to that testimony. As having important bearing upon the legislative intent as to the method by which such testimony may be had, Code, section 4667, provides that:

"'If a party to an action in his own right, on being duly subpoenaed, fails to appear and give testimony, the other party may, at his election, have a continuance of the cause at the cost of the delinquent.'"

The foregoing language was subsequently approved in In re Estate of Ellenberger, 171 Iowa 225, 153 N.W. 1036:

"The essence of our holding in Meikle's case is that, since parties to a suit may be adequately dealt with in open court for failure or refusal to give proper testimony, the general deposition statute should not be resorted to in order to obtain their testimony, because the only possible use of such proceeding would be to obtain testimony which the court itself would not admit. In its general aspect it declares the self-evident postulate that the machinery of the law shall not be resorted to colorably, oppressively, nor to obtain what the law does not grant. The mere claim that the application at bar was made for some such purpose is not enough to invoke the application of this rule here, even though there be evidence to sustain the accusation."

It is clear that the procedure complained of is not only not authorized but, under the decisions of this court, forbidden in actions at law. Other statutes not directly in point tend rather persuasively to negative the contention of respondent. Persons summoned as witnesses to give testimony upon the trial of civil causes are entitled to fees and mileage, and may demand the payment thereof in advance. Sections 11326, 11331, 11398, Code 1931. A party to an action, when summoned as a witness, is not only not entitled to the payment of fees in advance, but is not entitled to have fees taxed in...