Ex Parte Bevan
| Decision Date | 25 January 1933 |
| Docket Number | 23652,23653,23654 |
| Citation | 184 N.E. 393,126 Ohio St. 126 |
| Parties | Ex Parte Bevan. |
| Court | Ohio Supreme Court |
Evidence -- Depositions -- Judicial power not exercised by notary public committing witness for contempt -- Constitutional law -- Sections 11510, 11511 and 11512, General Code -- Due process of law -- Committed witness afforded statutory remedy -- Section 11514, General Code -- Relevancy or competency of testimony and privilege preserved in trial court -- Right to cross-examine adverse party vests when summons served -- Sections 11497 and 11526, General Code -- Cross-examination authorized, although codefendant not served -- Codefendant may be served, how -- Section 11299, General Code -- Infirmity of petition or action not ground for refusal to respond -- Notary public not disqualified for interest in taking depositions -- Subpoena duces tecum not unreasonable search and seizure -- Entire corporate correspondence file records and documents ordered produced -- Collection of assets of corporation -- Heir or legatee may maintain action upon refusal of personal representative.
1. Judicial power is not exercised by a notary public, during the taking of depositions, in committing to jail witnesses who refuse to answer questions, and in attaching and committing to jail witnesses who disobey the order of their subpoena.
2. The general assembly did not violate any provision of the federal or state constitution in the enactment of Sections 11510, 11511 and 11512, General Code, in delegating such power to notaries public. (DeCamp v. Archibald, 50 Ohio St. 618, and Benckenstein v. Schott, 92 Ohio St. 29, approved and followed.)
3. A witness committed by a notary public, under Sections 11510, 11511 and 11512, General Code, has his remedy under Section 11514, General Code, and is not denied due process of law. Where the witness is a party and is being examined as upon cross-examination under the statute, the further right to test the relevancy or competency of the questions and to demand his privilege, is preserved to him in the trial court.
4. The right of a party to an action to examine the adverse party as upon cross-examination under Section 11497, General Code vests as soon as summons is served on such party as provided by Section 11526, General Code. The fact that a co-defendant has not been served with summons, does not furnish any reason why the party served should not submit to such examination since the party plaintiff may proceed under Section 11299 General Code.
5. No ground for refusal to appear before a notary public and testify, is afforded officers of a corporation by the fact that the petition in the action, in which it is sought to take the depositions of such officers as upon cross-examination, is claimed to be demurrable, or that the action was not brought within the time provided by law, or that a party plaintiff has been guilty of laches.
6. The claim that a notary public has such an interest in the taking of depositions as disqualifies him to act, is untenable, and the case of Tumey v. Ohio, 273 U.S. 510, has no application whatever.
7. In an action charging fraudulent conspiracy by the officers of a corporation, because of the tendency toward liberality in cases of this character, the range of the testimony is wide, and subpoenas duces tecum, which command that the entire correspondence file, records and documents of such corporation for many years back, be produced before the notary public by the officers of the corporation, to be used in connection with the giving of their depositions as upon cross-examination, are not so broad and sweeping as to be violative of due process, and do not constitute unreasonable searches and seizures.
8. When a personal representative of a decedent's estate refuses to bring an action for the collection of assets, an heir, legatee or devisee may bring the action and make such personal representative a party defendant.
These are proceedings in error to review the respective judgments of the Court of Appeals of Lucas county, Ohio, made and entered in the above-entitled cases.
An intelligent consideration of the issues involved necessitates a comprehensive statement. In order to make it comprehensive, some time and much space have been consumed.
These judgments respectively deny original applications by the plaintiffs in error for discharge from the custody of the sheriff of Lucas county. The plaintiff in error C. N. Bevan was held under a commitment issued by a notary public for his refusal to answer material questions, refusal to answer any further questions of any character, and refusal to produce material books or records, pursuant to a subpoena duces tecum, in the course of the taking of his deposition in the suit of Clara Sielcken-Schwarz v. The Woolson Spice Company et al., pending in the common pleas court of Lucas county. The plaintiffs in error John W. Koehrman and Robert A. Stranahan had respectively been arrested under attachments issued by the same notary, upon their refusal to appear and give their depositions in the same case, in response to subpoenas personally served upon them.
The material facts are as follows: On June 2, 1932, Clara Sielcken-Schwarz, as widow and sole residuary legatee of the late Hermann Sielcken, filed her petition in the common pleas court of Lucas county, Ohio, against the Woolson Spice Company, an Ohio corporation, of which the plaintiff in error, C. N. Bevan, is secretary and treasurer; against plaintiffs in error John W. Koehrmann and Robert A. Stranahan; against Franklin H. Biggs, Marion M. Miller and Frank D. Stranahan; against Ammi F. Mitchell and Leroy E. Eastman, as administrators of the estate of William Brigham, deceased; and against the Irving Trust Company, a foreign corporation, as executor of the last will and testament of Hermann Sielcken, deceased.
The petition charges that the defendants Koehrmann and Biggs and said Brigham fraudulently conspired together to take advantage of the absence in Germany of Sielcken (president and controlling stockholder of the Woolson Company), where he had gone on the business of the company, and where he had been detained by his last illness and the exigencies of the World War, to oust Sielcken as president, and to wrongfully acquire control of the corporation and manipulate and exploit it in their own interests; that thereafter said Koehrman, Biggs and Brigham, in as- sociation with Robert A. Stranahan and Frank Stranahan, aided and abetted by the Woolson Spice Company, fraudulently conspired together to acquire for a grossly inadequate price the stock formerly held by Sielcken and then held by his estate; that the fraudulent conspiracy was carried on by such individual defendants taking advantage of the control of the corporation, wrongfully acquired by them, to misrepresent the financial condition, business and prospects of the Woolson Company; that such fraudulent misrepresentations were communicated to the executor, and to all prospective purchasers of the stock; and that as a result of this wrongful and fraudulent conspiracy the individual defendants, aided and abetted by the Woolson Spice Company, obtained the stock of the Sielcken estate for a grossly inadequate price.
The petition asks to have the stock so obtained restored to the estate, together with all dividends paid thereon since its fraudulent conversion.
The petition alleges that the fraud was not discovered by the plaintiff, sole residuary legatee, until 1931, and was not discovered by the executor prior to that time. The petition further sets forth that since the executor has failed and refused to bring the suit on request of the plaintiff, such executor is therefore joined as a party defendant.
On the same day the petition was filed, summons was duly issued and served upon all of the defendants except Marion M. Miller, who could not be found within the county and who has not been served. On the same day, after service of summons, notice to take depositions on June 6, 1932, was served on the common pleas defendants, and subpoenas duces tecum were served on the witnesses, Koehrman and Bevan. No proceedings were had on this notice because prior to June 6th counsel for the common pleas plaintiff were served with a motion to quash the notice to take depositions and the subpoenas duces tecum, and to enjoin the tak- ing of depositions. This motion came on for hearing before the common pleas court of Lucas County, Ohio, on June 6, 1932, and, at the suggestion of the court, an agreement was reached between counsel for the common pleas plaintiff and chief counsel for the common pleas defendants, and for these plaintiffs in error, that the taking of depositions should be postponed until June 13th. Pursuant to that agreement new notices to take depositions on June 13th were served on the common pleas defendants, subpoenas duces tecum upon the plaintiffs in error Bevan and Koehrman, and ordinary subpoenas upon the plaintiff in error Robert A. Stranahan and upon Frank Stranahan.
At 9:30 a.m., on June 13th, the hour fixed for taking the depositions, the witness Bevan appeared, but without any of the books and papers called for in his subpoena. The witnesses Koehrman and Stranahan disregarded their subpoenas and failed to appear. On the failure of three of the witnesses summoned to appear, and the failure of the witness Bevan, to make any compliance with his subpoena duces tecum, the notary adjourned the hearing until 2 p.m., of the same day, and ordered Bevan to produce at that time the books and records described in his subpoena. Prior to this adjourned time for the taking of these depositions a supplemental motion to quash the new notices and subpoenas, and to enjoin the taking of depositions in the common...
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