Dogge v. State

• Decision Date: 24 February 1887
• Citation: 21 Neb. 272,31 N.W. 929
• Parties: DOGGE v. STATE.
• Court: Nebraska Supreme Court

21 Neb. 272

31 N.W. 929

DOGGE

v.STATE.

Supreme Court of Nebraska.

February 24, 1887.

Syllabus by the Court.

Under the provisions of the statutes of Nebraska the parties to a civil action are competent witnesses, and each may be compelled to testify in favor of the adverse party, the same as any other witness.

A notary public has power to commit for contempt a witness who refuses to give his deposition in a proper case.

Error from Lancaster county.H. J. Whitmore and Billingsley & Woodward, for plaintiff.

Allen W. Field and W. J. Houston, for defendant.

REESE, J.

On the twenty-third day of July, 1886, plaintiff filed her petition for a writ of habeas corpus before the Honorable S. B. POUND, judge of the district court of the Second judicial district, as follows, to-wit: “Your petitioner, Bertha Dogge, respectfully represents to S. B. POUND, judge of the district court for the county of Lancaster, that she is unlawfully deprived of her liberty by one S. M. Melick, sheriff in Lancaster county, in this state. Your petitioner alleges the facts in regard to said detention to be as follows, to-wit: This petitioner is one of the defendants in an action pending in the district court of said county, wherein Hart Bros. et al. are plaintiffs, and Bertha Dogge et al. are defendants; that one of the plaintiffs in said action, on the sixteenth day of July, 1886, served upon the attorneys of your petitioner a notice that they would, on the twenty-first day of July, 1886, at the office of James L. Caldwell, in the city of Lincoln, Nebraska, take the deposition of your petitioner; that on the nineteenth day of July, 1886, an alleged subpœna commanding your petitioner to appear before W. J. Houston, a notary public, at the office of J. L. Caldwell, in the city of Lincoln, in said county, on the twenty-first day of July, 1886, at nine o'clock in the forenoon, and give evidence in a suit between Hart Bros., plaintiffs, and Bertha Dogge and Otto H. Dogge, defendants, on the part of said Hart Bros., plaintiffs; that your petitioner failed and refused to comply with the order of said pretended subpœna, and thereupon the said notary public, W. J. Houston, issued a writ of attachment, directed to the sheriff of said county, and caused your petitioner to be arrested, and brought before him to give said deposition; that your petitioner refused to be sworn in said case, and refused to answer the questions put to her by the said notary public, and by the attorneys for the said Hart Bros.; that thereupon the said notary public, W. J. Houston, made out a writ of commitment, directed to the sheriff of Lancaster county, the said S. M. Melick, commanding him to take your petitioner into his custody, and to imprison her in the county jail of said county until such time as she would be willing to give her said deposition, or was otherwise released by law; that this petition is set out in the notice to take depositions served herein, in the pretended subpœna served upon her, and in all the papers filed herewith, as one of the parties defendant to the action; that there is no provision of the statute of Nebraska whereby a defendant to an action can be compelled to testify in a cause before the time of trial thereof; that your petitioner is a resident of Lancaster county, Nebraska, is in good health, and capable of being present at the trial of the cause set out in said pretended subpœna, and has no intention of being absent from the county when said cause comes up for trial,--of all of which the said attorneys for plaintiffs and the said notary public, W. J. Houston, had due notice in writing before the issuing of said writ of attachment, and before the issuing of said commitment; that the action of said notary public, W. J. Houston, in committing your prisoner to jail, was illegal and unwarranted by law; and that the detention of your petitioner by said S. M. Melick is therefore illegal and wrong. A copy of the warrant of commitment is hereto attached, marked ‘Exhibit A.’ Your petitioner therefore prays that a writ of habeas corpus may be issued, and that she may be discharged from said unlawful imprisonment.”

A writ was issued, but upon a hearing plaintiff in error was remanded to the custody of the sheriff, and she brings error to this court.

We have set out the petition in full, in order that it may appear just what the legal propositions involved in the case are. From the record before us it appears that a notice to take the deposition of plaintiff and Otto H. Dogge was given their attorneys, and a subpœna was served upon them. These papers were in the usual form, and need not be further noticed. Prior to the time fixed for taking the deposition, plaintiff and Otto H. Dogge served upon the notary public a notice, which we also copy in full. It is as follows:

“JULY 21, 1886.

To William J. Houston, Notary Public, Lincoln, Nebraska: We have been notified and summoned to appear at your office this day for the purpose of giving out testimony on behalf of the plaintiffs in the above-entitled action. The above-named plaintiffs are all non-residents of this state. We are citizens and residents of the city of Lincoln, Lancaster county, Nebraska, are in good health, and have no intention of changing our residence. Under and by virtue of the laws of this state, there is no legal or sufficient reason for the taking of our deposition at this time, or our evidence in this cause, before the trial of the same. We respectfully decline to appear at your office as requested in said summons, and decline to give our evidence in said cause at this time. You are hereby notified that we will hold you responsible in damages, as such officer, for any and all acts, official or otherwise, in which it may be attempted to coerce us into giving our testimony in this case prior to the hearing of said cause in our district court. We give you this notice prior to the hour set for our appearance before you, that you may act advisedly in the premises.

BERTHA DOGGE.

OTTO H. DOGGE.”

Upon plaintiff's failure to appear at the time fixed for taking her deposition, an attachment was issued by the notary, and she was arrested and taken before him, and required to be sworn and give her testimony, which she refused to do. She was then found guilty of contempt by the notary, and ordered to be committed to prison until she should consent to testify. The record made and entered by the notary is as follows:

“The said Bertha Dogge being brought before me on said attachment, and by me being...