De Camp v. Archibald

• Decision Date: 05 December 1893
• Citation: 50 Ohio St. 618,35 N.E. 1056
• Parties: DE CAMP v. ARCHIBALD, Sheriff.
• Court: Ohio Supreme Court

35 N.E. 1056

50 Ohio St. 618

DE CAMP v. ARCHIBALD, Sheriff.

Supreme Court of Ohio.

December 5, 1893

Error to circuit court, Hamilton county.

Petition in habeas corpus by Joseph M. De Camp for release from custody on a commitment for contempt. From a judgment affirming an order denying the relief sought, petitioner brings error. Affirmed.

Syllabus by the Court

1. The power of a notary public in taking depositions to punish a contumacious witness is not limited by section 119, Rev. St to the powers in that regard conferred on justices of the peace by sections 6541 and 6542, Id. By being included in section 5269, Id. he has the further power of imprisoning for contempt, conferred on ‘ an officer’ taking depositions, by sections 5252 and 5254 Id.

2. The power conferred by sections 5252 and 5254, Rev. St., on a notary or other officer, in taking depositions, to commit a witness to the jail of the county for refusing to answer a question, is not ‘ judicial,’ in the sense of the constitution, conferring all judicial power upon the courts of the state.

3. Where the question propounded involves no question of privilege on the part of the witness, it is his duty to answer, if ordered by the notary to do so. The question of its competency is a matter for the determination of the court on the trial of the action in which the evidence is taken. And, if he refuses to do so when ordered, he may be committed as a contumacious witness.

Harmon, Colston, Goldsmith & Hoadly and Follett & Kelley, for plaintiff in error.

Bateman & Harper, for defendant in error.

MINSHALL, J.

The object of this proceeding is to reverse an order of the court of common pleas of Hamilton county, affirmed by the circuit court, remanding the plaintiff in error to custody of the sheriff of the county in a proceeding in habeas corpus, the return of the sheriff showing that the party had been committed to the jail of the county by a notary public for refusing to answer certain questions propounded to him; his deposition being taken at the time before the notary to be used as evidence in an action then pending in the superior court of Cincinnati; the suit being that of Charles A. Costello v. The Post Publishing Company, for an alleged libel published in the paper of the defendant, called ‘ The Cincinnati Post.’ The plaintiff in error, Joseph M. De Camp, having been called as a witness by the defendant, was asked, among other questions, the following: ‘ You have stated that you prepared the substance of the article published in the Miami Valley News, and employed somebody else, or got somebody else, to assist you in putting it into shape. I will ask you who that person was.’ After an exception to the question by the plaintiff as incompetent and irrelevant, the witness answered: ‘ Well, it was not Mr. Costello,’ -to which the counsel for the defendant said: ‘ That does not answer the question. I did not ask you who it was not, but who it was.’ To this the witness answered: ‘ Well, I have stated several times that Mr. Costello had nothing to do with that article.’ He was then asked if he refused to answer the question, and he answered that he did. Thereupon counsel for defendant said: ‘ I shall ask the notary to order you to answer the question, and I state that the article from which the matter complained of in the petition in this case was taken referred to the article mentioned in the question in the Miami Valley News as the occasion for writing it, and charged Mr. Costello with having procured the article to be published. And we expect to show that the person who prepared the article, or assisted Mr. Costello in preparing it, was Otto Reich; that Otto Reich did prepare it, caused it to be typewritten and put in shape for publication, with the knowledge and in consultation with Mr. Costello; that the article itself was scurrilous, indecent, and scandalous, and was the provocation for writing and publishing the article which is complained of in the plaintiff's petition; and therefore we desire the evidence for the purpose of proving, or aiding in the proof of, the above facts.’ He was then ordered by the notary to answer the question, but refused to do so. Counsel for the defendant then stated that, before asking the commitment of the witness for his refusal to answer the above question, there were some other questions he wished to ask him. He then said: ‘ You have stated that 30 copies or thereabouts of the article were sent to your house on Saturday, and on Saturday night distributed, partly by the aid of persons you had requested to assist you in doing it. I ask you to state who these persons were.’ The witness stated that Mr. Costello was not one of them, but refused to answer who they were. Counsel for the defendant then stated: ‘ We shall offer testimony at the trial to show that the publication and distribution was made with the knowledge of, and in consultation with, the plaintiff in this action, and that the circumstances of such distribution to the families of Wyoming, including the family of the author of this article, constituted the provocation for the writing of the article complained of, which refers to the article in the Miami Valley News, and the manner of its distribution, as being in part an act of Mr. Costello. I shall therefore ask that the witness be compelled to answer the question, and I shall object to any statement of the witness, as testimony, being made, until this question is answered.’ The notary then ordered the witness to answer the question, and he still refused. At the conclusion of the examination, the notary adjudged the witness guilty of contempt in refusing to answer the above questions, and committed him to the jail of the county, there to remain until he should testify as ordered.

It is claimed that the court erred in remanding the party on these grounds: (1) That no power is conferred on a notary by the Statutes of Ohio, in taking a deposition, to commit a witness to jail for refusing to answer a question; or, if this be not so, then (2) such power, being judicial in character, cannot be conferred on a notary; and (3) the questions propounded the witness were incompetent and irrelevant, and furnished no ground for a commitment.

1. As to the first question, is such power conferred on a notary public by the statutes of the state? It is claimed that the only power possessed by a notary in such matters is that conferred by section 118, Rev. St., giving to him the same power, in taking depositions, to punish a witness for refusing to testify, that is conferred on a justice of the peace, which power is conferred by sections 6541 and 6542 Id. These sections empower a justice of the peace to impose a fine of five dollars upon a witness who refuses to testify before him in any matter in which he has power to require such witness to appear and testify. The power to imprison, or to impose a greater fine than five dollars, is not conferred by these sections. If this were the limit of the power conferred by statute upon an officer in taking depositions, to deal with a contumacious witness, the argument would be conclusive. But we do not think so. The mode of taking testimony by depositions is provided for in the part of our Revised Statutes relating to civil procedure. Section 5269 designates the officers before whom evidence in this form may be taken, and includes ‘ a notary public; ’ section 5252 provides, among other things, that ‘ a refusal to answer as a witness, when lawfully ordered, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required; ’ and section 5254 provides that ‘ the punishment for the contempt mentioned in section 5252 shall be as follows: When the witness fails to attend in obedience to the subpoena, the court or officer may fine him in a sum not exceeding fifty dollars; in other cases the court or officer may fine the witness in a sum not exceeding fifty nor less than five dollars, or may imprison him in the county jail, there to remain until he submits to be sworn, testifies, or gives his...