Ex parte Button
| Decision Date | 05 March 1909 |
| Docket Number | 16,064.,Nos. 16,063,s. 16,063 |
| Parties | EX PARTE BUTTON. EX PARTE HAMMOND. |
| Court | Nebraska Supreme Court |
Sections 966 and 967 of the Code of Civil Procedure do not apply to the taking of depositions before justices of the peace, but section 356 et seq. controls in such matters.
Irregularities in proceedings before justice of the peace committing a recusant witness cannot be reviewed upon habeas corpus. It is only when the proceedings are void that this writ can be of any value.
The language of the Constitution is to be interpreted with reference to the established laws, usages, and customs of the country at the time of its adoption, and the course of ordinary and long-settled proceedings according to law.
Statutes authorizing justices of the peace to take depositions and to punish persons who disobey subpœnas or refuse to answer proper questions are within the provisions of section 18, art. 6, of the Constitution, providing that justices of the peace shall have and exercise such jurisdiction as may be provided by law.
A refusal to answer such improper questions as would constitute abuses of process is not a contempt and may not be punished, and a witness is entitled to his privileges and immunities as well when a deposition is taken as when examined in open court.
Separate original applications for habeas corpus by Byron G. Button and Elmer C. Hammond. Writs refused.Flansburg & Williams, for petitioners.
Charles A. Robbins, for respondents.
This is an application for a writ of habeas corpus. The petitioner was detained by virtue of an order of commitment issued by Minor S. Bacon, a justice of the peace in and for Lancaster county, which commanded the keeper of the jail of that county to receive him “and him there safely keep until he shall submit to be sworn and testify and to give his deposition in the case entitled George W. Herr, Plaintiff, v. Button Land Company, et al., Defendants, now pending in the district court of Lancaster county, Neb.”
It appears that a subpœna was served upon on the petitioner requiring him to appear and give his deposition in that case on January 19, 1909, before Justice Bacon, that he demanded and was paid his fees for one day's attendance, and that he failed to appear in response to the subpœna, whereupon an attachment was issued by the justice and delivered to a constable, who arrested and brought him before the justice forthwith. He was then requested by the justice to be sworn and testify, but he refused, saying that, acting upon the advice of counsel, he would refuse to be sworn and would refuse to testify in the case. Certain questions were then asked by the attorney for Herr which the witness refused to answer. By agreement the hearing was adjourned until the next day. Like proceedings were had as to Byron G. Button. On that day an answer was filed alleging: That the taking of the depositions was in bad faith and for the purpose of annoying the defendants in the case and was a mere fishing for testimony; that their testimony was not material or necessary to the plaintiff's cause of action; that the defendants are residents of Lancaster county, wherein the action is pending; that they have no intention of removing therefrom; that other witnesses were named in the notice to take depositions, but none of them were examined or sworn; that after the witnesses were arrested, and brought before the examining officer, the plaintiff Herr and his attorney abandoned the complaint, charging disobedience to the subpœna, and undertook while they were under arrest to compel the defendants to be sworn and examined under the notice to take depositions; and that the complaint to which this answer is filed is a different complaint and is for a different offense from that for which these defendants were arrested. It is further alleged that the proceeding is void and in violation of that provision of the federal Constitution which provides that no person in a criminal case shall be compelled to be a witness against himself. Fifth amendment. The record then shows that the witness “having refused to be sworn, and having refused to testify by deposition upon being requested so to do by the court, and the defendant having filed his showing why he should not be punished for contempt, the court finds the defendant, Elmer C. Hammond, guilty of contempt of court,” and judgment was rendered committing him to the county jail, “there to remain until he shall submit to be sworn and testify and to give his deposition in the case.” A warrant of commitment was thereupon issued and the petitioner committed to jail.
A number of questions are discussed in the brief of the petitioner. His first contention is that under sections 966 and 967 of the Code of Civil Procedure a justice of the peace has no power to do more than impose a fine of $5 for refusal to be sworn or to answer questions. We are of the opinion that these sections do not apply to the taking of depositions, but that section 356 et seq. controls.
It is next contended that, when a witness is brought before the court by attachment for refusal to obey a subpœna, he can only be tried and punished for that contempt, and that a court has no power to propound questions to him and punish for a refusal to answer the questions. This, however, is the ordinary practice when a trial is in progress leaving the contempt in refusing to obey the subpœna to be dealt with later, and we see no objections to the practice. The order of procedure is within the court's discretion.
He next contends that the justice of the peace in taking a deposition does not act judicially, that he is a mere ministerial officer and has no power to adjudge a person guilty of contempt and commit him to jail, and that a law conferring such power violates section 1, art. 6, of the Constitution of the state. Lastly he urges that a refusal to answer improper and irrelevant questions is not a contempt of court, and that it is an abuse of process to take depositions for the purpose of discovery. Several of the points raised by the petitioner have already been considered by this court and disposed of adversely to his contentions, in other cases. In Dogge v. State, 21 Neb. 272, 31 N. W. 929, certain witnesses who had been subpœned to appear before a notary public for the purpose of having their depositions taken failed to appear, an attachment was issued, and the witnesses arrested, taken before the notary, and one of them required to be sworn and give testimony, which she refused to do. She was then found guilty of contempt and ordered to be committed to prison until she should consent to testify. It was urged in that case, as in this, that the witness was a resident of Lancaster county capable of being present at the trial, that she had no intention of being absent from the county, that she was an adverse party in the case, and there was no provision of law whereby she could be compelled to testify before the time of the trial. She further contended that the notary public had no power to commit her for the reason that he had no judicial powers. As to the first point it was decided that “It was the intention of the Legislature in the enactment of the chapter on evidence to remove every barrier to discover the truth where the parties to the action have equal opportunity to testify, and, where necessary, either party may call the other to testify as to evidence exclusively within his knowledge, provided the question was not privileged.” On the second point, it is held: That the provisions of section 1, art. 6, of the Constitution, providing, “The judicial power of this state shall be vested in a Supreme Court, district court, justice of the peace, police magistrate and such other courts inferior to the district court as may be created by law for cities and incorporated towns,” do not limit the exercise of all judicial functions to the courts named; that it was not the intention of the framers of the Constitution to prevent the exercise of all judicial functions except by these courts; and that since these statutory powers were in existence before the adoption of the Constitution they were continued in force by section 4 of article 16 thereof.
In Courtnay v. Knox, 31 Neb. 652, 48 N. W. 763, it was held that a notary had no power to punish a person not a witness for contempt in using flagrant and profane language in the presence of the notary and witnesses then present to give testimony, since no such power was conferred by the statute. The conclusion is reached that the notary's powers are limited to the provisions of the statute, and “that he borrows no judicial power in the taking of depositions from the dignity of his employment or the necessities of his case.” Olmsted v. Edson, 71 Neb. 17, 98 N. W. 415, was an action against a county judge to recover damages for false imprisonment. The petition alleged that the plaintiffs were husband and wife and residents of Webster county, that an action was brought against them in the district court for that county, that a notice to take their depositions in that case at the office of the defendant county judge was served on them, and that a subpœna was issued and served requiring them...
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