Eckerle v. Wood
| Decision Date | 10 June 1902 |
| Citation | 69 S.W. 45,95 Mo.App. 378 |
| Parties | FREDK. N. ECKERLE, Plaintiff, v. AUGUSTUS M. WOOD et al., Defendants |
| Court | Missouri Court of Appeals |
WRIT DENIED.
Preliminary rule discharged and judgment directed for defendants.
Geo. D Reynolds for petitioner.
(1) This is a proceeding to obtain a writ of prohibition to forbid the taking of depositions by defendant, Augustus M Wood, a notary public in the city of St. Louis, Missouri. Summing up sections 74-77, it is apparent that they provide a summary mode for the discovery of assets--that procedure, in the first instance, under these sections is within the exclusive jurisdiction of the probate court, goes without saying. It is further apparent that, in that court, the issue is upon the written interrogatories and the answers, in writing, thereto, and it is too plain for argument that under section 75, the examination of all witnesses is to be on written interrogatories, answered in writing by the parties to be examined. I confess I do not know how to argue such a proposition as is involved in departing from the statute and taking the testimony of witnesses by deposition or orally, and am satisfied to submit the case, on behalf of the petitioner, on the facts and the statute. I will add, however, inasmuch as this is a proceeding for prohibition, that, if the probate court has no jurisdiction in this matter, manifestly a notary public, whose power must be referable to that of the court in which the case is pending, could have no jurisdiction to subpoena witnesses or compel their attendance or take their examination orally. Most certainly, with the jurisdiction of the court challenged, the case was in no condition whatever for the taking of depositions in it, even if depositions can be taken in a case of this kind. The alternative writ should be made absolute. Green case, 86 Mo.App. 216. (2) This proceeding in the probate court is not a "suit pending" in a court of this State, within the purview of section 2877, Revised Statutes 1899. This is a summary proceeding, meaning by that, proceedings "which are of an immediate, speedy, or peremptory nature." 24 Am. and Eng. Ency. (1 Ed.), p. 487; see note 2, page 498, where it is said: "It has been said that a special statutory proceeding, summary in its nature and in derogation of the common law, must conform to the method of procedure prescribed by the statute, or the jurisdiction will fail to attach, and the proceeding will be coram non judice."
J. Hugo Grimm for respondent.
(1) Upon the facts of the case two questions arise: First. In such a proceeding as prescribed by sections 74 to 77, Revised Statutes 1899, can depositions be taken? Second. If not, is prohibition the proper remedy? (2) The depositions were sought to be taken under the authority of section 2877, Revised Statutes 1899, which provides: "Any party to a suit pending in any court in this State may obtain the deposition of any witness, to be used in such suit, conditionally." (3) Now to authorize the taking of depositions it is only necessary that a suit has been instituted; it is not necessary that process has been served even, much less that any issue must have been made up by pleadings. Lewin v. Dille, 17 Mo. 64; Ex parte Munford, 57 Mo. 603; Cauthorn v. Haynes, 24 Mo. 236; Ex parte Livingston, 12 Mo.App. 86. (4) The contention of plaintiff that the proceeding in the probate court is not a "suit" within the meaning of that word as used in the deposition act, is untenable. The words of the statute show the intention of the Legislature to make it as broad as language can make it. The right is given, without any limitation or qualification, to take depositions in any suit in any court. The word "suit" is even more comprehensive than the word "action." 24 Am. and Eng. Ency. of Law, p. 493, where it is said: "Suit" in its most comprehensive sense applies to any proceeding in a court of justice in which the plaintiff pursues in such court the remedy which the law affords him for the redress of an injury or the recovery of a right; although the terms "suit" and "action" are frequently used interchangeably, the former is the more comprehensive. Weston v. Charleston, 2 Pet (U.S.) 464. (5) Justice MARSHALL, in Cohens v. Virginia, declares a suit to be
Original Action in Prohibition.
This is a proceeding to obtain a writ of prohibition to forbid the taking of depositions by defendant, Mr. Wood, a notary public in the city of St. Louis, Missouri.
The plaintiff is Mr. Frederick N. Eckerle. The defendants are Mr. Augustus M. Wood, the above named notary, the St. Louis Trust Company (executor of the estate of Catherine Linze, deceased) and Henry H. Linze. The last was the husband of said Catherine.
The matter in which the depositions are sought to be taken is an inquiry under the administration law (secs. 74-78, R. S. 1899) for the discovery of assets, said to be wrongfully concealed.
The following facts appear to be admitted.
In November, 1901, letters testamentary were granted in the probate court of the city of St. Louis to the St. Louis Trust Company, upon the estate of Catherine Linze, deceased, pursuant to her will, duly admitted to probate by said court.
The trust company duly qualified and is now in charge of the estate as executor.
January 18, 1902, there was presented to said probate court an affidavit of Henry H. Linze as follows (omitting caption):
"Henry Linze, of lawful age, being duly sworn, on his oath states that he is the widower of Catherine Linze, deceased, and as such is interested in her estate; that he has good cause to believe and does believe that Frederick N. Eckerle has concealed or embezzled various goods, chattels, wares, merchandise, household articles, glassware, and other personal property of the deceased, the exact value of which affiant can not state, but which he believes to be over $ 500, and that said Frederick N. Eckerle has such property in his possession or under his control, and refused to deliver them up to the St. Louis Trust Company, executor of Catherine Linze, deceased, upon demand made therefor."
The probate court then issued a citation to Mr. Eckerle to appear before the court and be examined on oath concerning the personal property of said estate, under the statute cited.
In response to this citation Mr. Eckerle filed a sworn answer denying the alleged facts and charging that Mr. Linze was not interested in any manner in said estate. And when the examination of Mr. Eckerle came on, the court, at the instance of the attorney of Mr. Eckerle, sustained an objection to the inquiry proposed to be had of Mr. Eckerle, on the theory presumably that the charge was criminal in its nature, and hence, that Mr. Eckerle could not be required to give testimony against himself in the matter (Const. Mo., 1875, art. 2, sec. 23).
The probate court, March 3, 1902, granted the trust company, as executor, until March 10, 1902, to to file interrogatories in said proceeding against said Eckerle, according to section 75 (R. S. 1899). The interrogatories were filed, March 10, 1902. Thereupon the court made an order (March 15, 1902) giving Mr. Eckerle until March 25, 1902, to file his answer thereto; but no answer appears to have been filed before this proceeding was begun, May 8, 1902.
April 2, 1902, the probate court adjourned for the term and continued said matter to the June term of said court, which will regularly convene on the first Monday in June ensuing.
About May 1, 1902, the trust company caused notice to be given to Eckerle, in usual form, for the taking of depositions of witnesses, May 6, 1902, to be read in evidence in the cause entitled in said notice as follows:
"In the matter of Estate of Catherine Linze v. Frederick N. Eckerle, on citation to disclose assets."
The place appointed was the office of one of the counsel in the cause and the usual hours were named.
No question of the form of the notice arises.
Mr. Eckerle was also served with a subpoena to appear (at the time and place where the depositions were appointed) to testify in the cause above entitled "on behalf of plaintiff." The subpoena was issued by Mr. Wood (now defendant) as notary public.
At the time and place named for the depositions the notary commenced taking testimony under the notice and continued said hearing the next day, when Mr. Eckerle, by his attorney, came before the officer and stated that he appeared specially to challenge his jurisdiction to take any testimony in the cause.
Notwithstanding this objection it is charged that said notary caused a subpoena to be served upon another person commanding him to appear in said cause and matter on the following day. It is further alleged that the notary intends to proceed with the taking of testimony of Mr. Eckerle and other witnesses under said notice.
In this state of the case counsel for Mr. Eckerle applied to the presiding judge of this court for a writ of prohibition forbidding said defendants from proceeding further to take the depositions. A preliminary rule, under section 4451 (R. S. 1899), was directed to defendants, who made a return, to which plaintiff has replied.
The matter was then heard before the court as upon motion to make the rule absolute, and the foregoing facts were developed. The only decisive questions which arise are questions of law.
1. The statute under which it is proposed to take the depositions permits a full investigation of facts concerning any wrongful withholding or concealing of assets of an estate as well as...
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