Evans v. Evans

• Decision Date: 02 February 1940
• Docket Number: 6753
• Citation: 98 P.2d 703,98 Utah 189
• Court: Utah Supreme Court
• Parties: EVANS et al. v. EVANS, Judge, et al

98 P.2d 703

98 Utah 189

EVANS et al. v. EVANS, Judge, et al

No. 6753

Supreme Court of Utah

February 2, 1940

Original prohibition proceeding by Boyd Evans and another against the Honorable P. C. Evans, Judge of the District Court of the Third Judicial District in and for Salt Lake County, State of Utah, and others.

Writ of prohibition discharged with instructions.

Hurd &amp Hurd, of Salt Lake City, for plaintiff.

Irvine Skeen, Thurman & Miner, of Salt Lake City, for defendants.

WOLFE Justice. MOFFAT, C. J., and LARSON, McDONOUGH, and PRATT, JJ., concur.

OPINION

WOLFE, Justice.

The petitioners (plaintiffs in this suit) seek to make permanent a temporary writ of prohibition restraining the defendant Judge from further enforcing or attempting to enforce an order requiring the petitioners to produce certain records of the United Bond & Finance Corporation before a notary deputized to take the deposition of the petitioner, Boyd Evans, secretary of the said Corporation. The mandatory part of the order, dated June 2nd, made by the defendant Judge reads as follows:

"with and have in his possession at said time all original books, records and papers of the defendant United Bond and Finance Corporation pertaining in any manner to its business since the date of its organization and particularly the minute book of said corporation; and that the said defendant Boyd Evans submit to the taking of his deposition in said matter and remain and continue in attendance at the taking of said deposition as the same is directed and continued by the said notary public, until excused and released therefrom.

"It is further ordered that the said Boyd Evans forthwith pay to the plaintiff the sum of $ 6.90 representing the costs of the proceedings leading up to the taking of said deposition and the service of the order to show cause, citation and warrant of arrest herein." (Exhibit M.)

Events leading up to the making of said order were as follows: Late in 1938, John L. Wilson and Mayme J. Wilson, defendants herein, filed a suit in the District Court of Salt Lake County on nine alleged causes of action, eight of which had been assigned to them by other persons. Since, as will later appear, the scope and method of the inquiry as to what records a witness "is bound by law to produce in evidence" is somewhat flexible and depends on the nature of the issues, we briefly state the nature of this suit as revealed from the allegations of the complaint. For clarity, hereafter, we shall refer to plaintiffs in this special proceeding as petitioners and the defendants herein as respondents, and the plaintiffs and defendants in the suit in the District Court, as plaintiffs and defendants. Plaintiffs sued W. R. Beckstead, William L. Christensen, Boyd Evans, and United Bond & Finance Corporation, alleging that Beckstead was chief stockholder and president of the latter Corporation; that the other defendants were officers thereof and agents of Beckstead; that plaintiffs and their assignors were all owners of investment units in said defendant Corporation, hereafter called the Corporation; that said stock or investment units provided for their payment on maturity and the right to surrender same and receive out of the assets a fixed cash amount; that Beckstead conspiring with the other defendants while in a relationship of trust and confidence with plaintiffs, falsely represented that the Corporation was not in sound condition and by such representations induced the plaintiffs and their assignors to exchange their investment units in the Corporation for stock in worthless companies controlled by Beckstead, whereas the Corporation was actually in good financial condition. Plaintiffs' complaint prays for restitution of the investment units or, in event of impossibility, for money judgments on the nine causes of action. After service of summons, but before answer, plaintiffs served notice under Sec. 104-51-7, Sub. (1) R. S. U. 1933, to take the deposition of Beckstead, Christensen, and Evans and, under Sec. 104-51-7, Sub. (3) R. S. U. 1933, of O. P. Pearce.

On Feb. 4, 1939, Evans deposed that he was Secretary of the Corporation and that as such officer he had possession of all the books, records and papers of the same but that after notice of taking of deposition had been served, Beckstead took the books and records from him. Counsel for the plaintiff demanded that Evans produce the Company records and asked for a continuance until Feb. 6th to permit them to be brought in. The notary continued the taking of the deposition until Feb. 6th over objection of defendants' counsel that he could not be present on said date. The notary also issued, and there was served on Evans, a subpoena to bring in on Feb. 6th, "all books, records and papers now in your possession, or under your control as an officer of the United Bond and Finance Company" showing certain records of stock ownership in named companies and various other specified matters, and "showing all business transactions and dealings between the United Bond and Finance Corporation and said parties [named in the subpoena] and O. P. Pearce" over a certain period and also records showing certain payments by the Corporation or Beckstead or persons on their behalf "to O. P. Pearce or any other person during the year 1935 for and in connection with the acquisition of shares or units of stock of the United Bond and Finance Corporation or the Investors Thrift Corporation [one of the companies set out in the complaint, the stock of which was alleged to be worthless but was used to trade for units of the Bond Company belonging to plaintiffs and their assignors], by or from O. P. Pearce, or any other person, for W. R. Beckstead, or the United Bond and Finance Corporation during the year 1935." The subpoena contained a further demand for all books, records and papers in possession or under control of witness pertaining to the business affairs of the Corporation, and the Thrift Company.

The gist of the subpoena is set out to show the nature of the inquiry which plaintiffs were pursuing and the scope of their demands. The subpoena hints at the theory that Pearce and others were go-betweens to procure the investment units for Beckstead from plaintiffs and their assignors. Plaintiffs desire to investigate along these lines because such information presumably would be obtainable only from direct testimony of these go-betweens or from the records showing that they acted on behalf of Beckstead or his allegedly owned Corporation.

On Feb. 6th Evans and his counsel failed to appear, whereupon plaintiffs made application to the respondent Judge for an order to show cause, which order was issued and served on Evans requiring him to show cause why he should not be punished for contempt and be made to comply with the subpoena and with further orders of the court in regard to the production of the books. [To this citation defendants demurred and moved to dismiss it on the ground that the certificate of the notary was insufficient on which to base the citation and that the court was "without jurisdiction to entertain or hear the same."] The court did nothing more than set March 8, 1939, at 10 o'clock a. m. as the hour to take the deposition.

On March 8th, Evans and Christensen appeared before the notary and produced certain books of the Corporation but Evans refused to produce its Minute Book, on the ground that it had "no bearing upon these transactions." Counsel for plaintiffs, asserting that the Minute Book was the first step in his examination of the books, petitioned the respondent Judge for an order directing the sheriff to produce the witness before him, whereupon such order was made and the witness arrested and brought before the court. No contempt order was made nor were any findings made as to contempt. The court contented itself with making the order of June 2nd [set out above]. On June 10th petitioners (defendants in the original suit) appeared before this court and obtained a temporary writ of prohibition. The respondents by return day filed a demurrer on the ground that the facts set forth in the application are not sufficient to entitle petitioners to a permanent writ of prohibition. It is on the application and the demurrer that the question is before this court: to wit--Did the respondent Judge have power to make the order of June 2nd, 1939?

Prohibition lies to arrest the proceedings of any tribunal corporation, board or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of his or its jurisdiction. Sec. 104-69-1, R. S. U. 1933. And prohibition lies only when there is no adequate remedy. The question is, therefore, is the error one. which results in usurping jurisdiction, or is it only error within the framework of its jurisdiction? The first is jurisdictional error, that is, that which takes unwarranted jurisdiction; the second is error within jurisdiction. The difference between these two kinds of error is sometimes very difficult to distinguish. We treated this at length in Atwood v. Cox, 88 Utah 437, 55 P.2d 377. It is unnecessary further to elaborate upon it. It was also there said that where the error was such as to prevent any adequate remedy by appeal because by that time the harm already would be done, we would not look too closely to see if the threatened action of the court would be mere error within its jurisdiction or jurisdictional error. We followed that doctrine in Olson v. District Court, 93 Utah 145, 71 P.2d 529, 112 A.L.R. 438.

In the instant case we again have a situation where, even if the court is acting merely in error rather than in excess of its jurisdiction in permitting a party to examine plenarily the books of a witness, the...