Bevan v. Krieger Koehrman v. Same Stranahan v. Same 8212 786

• Decision Date: 22 May 1933
• Docket Number: Nos. 784,s. 784
• Citation: 289 U.S. 459,53 S.Ct. 661,77 L.Ed. 1316
• Parties: BEVAN v. KRIEGER, Sheriff. KOEHRMAN v. SAME. STRANAHAN v. SAME. —786
• Court: U.S. Supreme Court

289 U.S. 459

53 S.Ct. 661

77 L.Ed. 1316

BEVAN

v KRIEGER, Sheriff.

KOEHRMAN

v. SAME.

STRANAHAN

v. SAME.

Nos. 784—786.

Argued May 8, 9, 1933.

Decided May 22, 1933.

Appeals from the Supreme Court of the State of Ohio.

[Syllabus from pages 459-461 intentionally omitted] Messrs. Crary Davis and George D. Welles, both of Toledo, Ohio, for appellants.

Mr. Raymond T. Jackson, of Cleveland, Ohio, for appellee.

Mr. Justice ROBERTS delivered the opinion of the Court.

The three judgments from which these separate appeals are prosecuted have a common origin, are founded upon the same Code provisions, in the main present related questions, and may be reviewed in a single opinion.

Suit was instituted in an Ohio court by Clara Sielcken-Schwarz, as widow and sole legatee of Herman Sielcken, against the Woolson Company (of which the appellant Bevan is secretary and treasurer), Koehrman, Stranahan, and others, to obtain redress for an alleged fraudulent scheme whereby her deceased husband's executor, The Columbia Trust Company, was induced to part with certain capital stock of that corporation. The plaintiff, desiring to take the depositions of the three appellants, proceeded as provided by the General Code of Ohio.¹ Subpoenas duces tecum were served upon Bevan and Koehrman, and a subpoena ad testificandum on Stranahan. A notary public was named to take the testimony, and at the time and place appointed Bevan appeared before him, was sworn answered some questions, declined to answer others, and finally declared that he would answer no more. In each instance he was enjoined by the notary to answer, and in each case stated that he refused on the advice of counsel. He also failed to produce papers and documents called for in his subpoena, although he admitted that he had them in his possession or under his control, and in this matter also gave as his excuse advice of counsel. He did not claim personal privilege or possibility of self-incrimination, but he and his counsel contented themselves with the statement that the questions and the writings were immaterial and irrelevant to any issue in the suit. Koehrman and Stranahan faile to appear in response to the subpoenas served upon them. The notary, upon the plaintiff's request, issued a commitment of Bevan for contempt, and attachments for the other two appellants. These writs were delivered to the sheriff for service. All three appellants surrendered to that official, and applied to the Court of Appeals of Lucas County for writs of habeas corpus. After hearings, that court remanded each to the custody of the sheriff. The Supreme Court affirmed the judgments.

In the courts below, and here, the appellants have insisted that the statutes of Ohio authorizing their arrest and detention deprive them of due process. The sections of the General Code drawn in question are 11510, whereby disobedience of a subpoena and refusal to be sworn, or an unlawful refusal to answer as a witness, may be punished as a contempt of the officer by whom the attendance or testimony of the witness is required; 11511, which authorizes the notary to issue an attachment to arrest and bring before him the person subpoenaed to give his testimony or answer for his contempt; and section 11512 which fixes the penalty for contempt: 'When the witness fails to attend in obedience to a subpoena, the court or officer may fine him not over fifty dollars; in other cases, not more than fifty dollars nor less than five dollars; or he may imprison him in the county jail, there to remain until he submits to be sworn, testifies, or gives his deposition.' By section 11514 it is provided that a witness so imprisoned by an officer may apply to a judge of the Supreme Court, Court of Appeals, common pleas or probate court, who may discharge him if it appears that his imprisonment is illegal.

The appellants' position is that since the statute requires the witness to answer only lawful questions, and the notary, not being a judidicial officer, is not permitted to pass upon the lawfulness of a question, but is bound to commit for refusal to answer, the commitment without a prior judicial hearing and provision for such a hearing only after commitment (section 11514), is a denial of due process.

Koehrman and Stranahan fail to present a federal question. Both of them, without excuse, absented themselves from the taking of the depositions. The writs of attachment issued to bring them before the notary for contempt were not served. While the sheriff held the process these appellants sought him out, surrendered to him, and immediately applied for writs of habeas corpus. Their conduct precludes the assertion that they were denied a hearing by the notary. They asked for none, and by their action rendered one impossible.

Bevan's case differs but slightly from those of Koehrman and Stranahan. He refused to answer questions or to produce the writings enumerated in his subpoena. The notary thereupon, after adjourning the hearing until the following day, issued the commitment. Bevan surrendered himself to the sheriff, and by habeas corpus challenged the legality...