Burnett v. Prince

Decision Date16 July 1917
Docket NumberNo. 18533.,18533.
Citation272 Mo. 68,197 S.W. 241
PartiesBURNETT v. PRINCE.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by Spottswood D. Burnett against Charles W. Prince. From judgment for defendant, plaintiff appeals. Reversed and remanded.

The suit is for damages for false imprisonment, brought in the jackson county circuit court. On the trial of the cause, March 4, 1914, after all the evidence had been introduced by both the plaintiff and the defendant, the court instructed the jury to return a verdict for the defendant.

On the 14th of November, 1907, the plaintiff herein was arrested on an attachment issued by W. W. Calvin, notary public, on account of his failure to appear on that day and give his deposition in a case pending in the circuit court of Jackson county, Independence division, wherein B. C. Boyles was the plaintiff, and the plaintiff here, S. D. Burnett, was the defendant. Plaintiff was arrested at his farm, some four or five miles from Independence, and taken by the constable under the attachment to the office of Calvin in Kansas City, where he arrived about 5 or 6 o'clock p. m. The notary discharged him upon being informed that the notice to take depositions was irregular in particulars explained below. This arrest furnished ground for the cause of action charged in the petition.

The answer alleges that a suit was filed in the case of Boyles v. Burnett on the 11th day of November, 1907, in the circuit court of Jackson county, at Independence, and on the same day a notice was served on the plaintiff herein that depositions would be taken in the cause on the 14th of November, 1907; but by a mistake in writing the notice, it recited that the cause was pending in Kansas City instead of Independence; that on the same day, November 11th, this plaintiff was served with subpœna to appear on the 14th before the notary named therein and give his deposition in said cause; summons was served on the plaintiff herein on the 12th day of November, 1907, whereby he became apprised of the mistake in the notice to take depositions, but concealed that knowledge from the defendant herein for the purpose of creating a damage suit, and plaintiff would not have been molested if he had revealed the fact of such mistake.

The plaintiff claimed, as shown by his reply and his evidence introduced at the trial, that the suit on which the notice was served was not filed until November 12th and therefore when the notice to take depositions was served upon him there was no suit pending corresponding to the notice, for which reason he was not bound to appear. It was further claimed by the defendant that, inasmuch as the notice to take depositions stated that the depositions were to be taken in a suit pending in Jackson county at Kansas City, it was not notice of the suit actually filed, even if it had been filed at the time notice was served, because that suit was filed at Independence instead of Kansas City. The notice to take depositions as copied in the record contains the mistake mentioned, but the subpœna alleged to have been served at the same time was not introduced by either party, nor any offer made by either party to show that it was lost or to prove its contents. The only evidence of the service of a subpœna on November 11th was that, while plaintiff was on the stand, after stating that he had received the notice to take depositions, he was asked:

"Q. At the same time you got a subpœna to appear at Mr. Prince's office to give your deposition on the 14th day of November, didn't you? A. Yes, sir."

As further justification, apparently, for issuing the attachment another subpœna was introduced in evidence dated November 13th. This subpœna was placed in the hands of the constable at the same time he received the attachment on the 14th, and he took both the subpœna and attachment and served the subpœna at the same time he made the arrest in the afternoon of the 14th. To prove the suit was filed November 11th, defendant offered the petition in the case of Boyles v. Burnett, showing the rubber stamp file mark as follows:

"Filed Nov. 11, 1907, Oscar Hochlad, Clerk, by A. R. White, Deputy."

On the part of plaintiff two deputy clerks were introduced, and identified books kept in the office of the clerk of the circuit court which purported to contain entries made when cases were filed. In each of these some entry in relation to filing the case of Boyles v. Burnett, No. 18,750, appears under date of November 12, 1907. These books also showed several other entries on the day's business of November 12th, before the entries in relation to the case of Boyles v. Burnett. The two deputy clerks who testified to these matters explained that the rubber filing stamp had an arrangement by which they would move up the date each morning in order to change it from the previous day, and stated that they would sometimes forget to change it in the morning until after they had used the stamp; that the stamped date on the petition, "November 11, 1907," possibly was made in that way on the morning of the 12th before they discovered it had not been moved up, and that according to this record the suit must have been filed on November 12th. The deputy, A. R. White, who stamped the file mark on the petition as of the date of the 11th and in whose handwriting appeared the entry on one of the books, stated he could not remember the filing of the case, but thought that the file mark was correct.

J. D. Shewalter, of Lexington, for appellant. Glen Sherman, J. E. Westfall, and J. N. Beery, all of Kansas City, for respondent.

WHITE, C. (after stating the facts as above).

I. Almost the entire space in respondent's brief is taken up with numerous objections to the record. Because these objections are urged so persistently we notice a few of them as follows:

It is asserted that the abstract of the record proper fails to abstract any final judgment rendered. The abstract of the record proper shows the following:

"March 4, 1914. Jury returned verdict for defendant and judgment accordingly for the defendant."

This abstracts a judgment for defendant as fully as need be. If it were a judgment for plaintiff some further particulars as to the character of the judgment might be necessary, but, being a judgment for the defendant, this describes its character.

It is complained that the record proper fails to show that a motion for new trial was ruled upon "and the nature of the motion." After reciting the filing of the motion for new trial in due time on March 7, 1914, there follows this entry: "May 2, 1914, motion for new trial overruled." This record shows the motion was ruled on and the "nature" of the motion; it was a motion for new trial.

It is claimed that the record proper fails to show that any bill of exceptions was duly filed. The recital in the abstract of the record proper shows the following:

"May 2, 1914. Plaintiff granted leave to file bill of exceptions on or before November 1, 1914."

"October 31, 1914. Bill of exceptions allowed and filed."

It is urged by respondents that in the absence of a formal entry showing the filing of the bill of exceptions, the recital should contain the exact words required by rule 31 of this court, which provides that it will be sufficient if the abstract states the bill of exceptions was "duly filed." Respondent lays immense emphasis upon the word "duly." One of the dictionary meanings of "duly" is "timely." Now, the work "filed" has a certain significance, and if the bill of exceptions was "filed," and filed within the time provided, then it is "duly filed." Other objections of character similar to the above do not require discussion.

II. The defendant, in answer to the allegations of the petition, alleges a subpœna was issued and served on the 11th of November

which the plaintiff herein disobeyed, and justified the issuance of the writ of attachment. It was necessary for the defendant to support that allegation by proof. None was offered; the alleged subpœna was not produced nor its loss accounted for, nor any evidence of its contents offered. The officer who served the notice to take depositions was not a witness. The only evidence of the service of a subpœna is in the passage from the testimony of the plaintiff quoted above. The statement he made does not designate nor identify the case in which the subpœna was issued. The appellant, however, seems to have waived that irregularity, and, without requiring proof of the existence and formality of a subpœna in the proper case, tried the case as if the subpœna had been issued and served. Therefore, for the purpose of this discussion, we shall have to assume that a subpœna, correct in form, was issued by the notary and served at the same time as the notice, on November 11th.

III. Courts at common law had no inherent power to authorize the taking of depositions. A court of chancery tried cases upon depositions and, upon a petition filed by a party to a pending cause, could issue a commission authorizing some person to take testimony in the form of depositions. In our courts such authority is purely statutory. The party desiring depositions may take them "conditionally." An officer taking depositions in a cause acts in a judicial capacity, and his authority is derived from the court in which the cause is pending; by conformity to the statute certain officials named in section 6387, R. S. 1909, may become temporary substitutes for the court, and as such take testimony in the form of depositions. Swink v. Anthony, 96 Mo. App. loc. cit. 424, 70 S. W. 272; ...

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