Ex Parte Canada

• Decision Date: 10 December 1910
• Citation: 132 S.W. 754,151 Mo. App. 704
• Parties: Ex parte CANADA.
• Court: Missouri Court of Appeals

132 S.W. 754

151 Mo. App. 704

Ex parte CANADA.

Springfield Court of Appeals. Missouri.

December 10, 1910.

Rehearing Denied December 22, 1910.

1. DEPOSITIONS (§ 56)—NOTICE OF TAKING.

Where three of four defendants were notified of the taking of depositions, after which a subœna was issued for the other defendant, before he was served with the notice the justice was authorized to take depositions as to the first three defendants served, and require the subpœnaed defendant to testify, though, if the defendant subœnaed had been the only defendant, the court may not have been authorized to take his testimony.

2. BANKRUPTCY (§ 20)—EFFECT ON PROCEEDINGS IN STATE COURT — PROCEEDINGS TO TAKE DEPOSITIONS.

The filing of a petition to have declared a bankrupt, defendant, subpœnaed to take his deposition, would not stay the proceedings of the state court as to other defendants, or the right of plaintiff to take depositions to be used against such other defendants.

3. DEPOSITIONS (§ 71)—REFUSAL TO TESTIFY — COMMITMENT — SUFFICIENCY — DESCRIPTION OF OFFENSE.

A commitment of a witness refusing to answer questions propounded to him in taking his deposition, which does not set forth the questions asked so that it can be determined therefrom whether they were material, is defective.

4. DEPOSITIONS (§ 62)—TIME OF TAKING.

The authority of a justice of the peace to take depositions is limited to the time and place named in the notice, and where the hours fixed in the notice are between 8 o'clock in the forenoon and 6 o'clock in the afternoon, and during the proper hours on one day, the taking of the depositions is adjourned until the next day, the justice cannot at 11 o'clock p. m. on the same day attempt to take the depositions.

5. DEPOSITIONS (§ 71)—REFUSAL TO TESTIFY —ATTACHMENT.

Where a defendant, subpœnaed to appear and testify by deposition, did not obey the subpœna, and was brought before the justice by an attachment, the justice's authority was not limited to imposing a fine for failure to obey the subpœna, but he could hold him until his testimony could be taken, where the justice continued the taking of the depositions from day to day to give him an opportunity to testify.

6. DEPOSITIONS (§ 71)—REFUSAL TO TESTIFY —COMMITMENT—NECESSITY.

Where a justice of the peace orders one brought before him by attachment, for failure to obey subpœna, to appear and testify by deposition, into the custody of a constable to hold him until he will testify, the issuance of a commitment is not necessary, the order giving the authority, and not a commitment issued thereon.

7. DEPOSITIONS (§ 71)—REFUSAL TO OBEY SUBPŒNA.

Until the taking of depositions has been completed, the proceeding is similar to the trial of a case in court, and the witness is required to attend until discharged, and one subpœnaed and brought before the justice taking the deposition by attachment for refusal to obey the subpœna is not entitled to his discharge until the taking of the depositions is completed or he has testified, until which time the justice may keep him in custody where he refuses to testify.

Petition of A. W. Canada for a writ of habeas corpus. Petitioner remanded.

Clay & Davis and Don. C. Carter, for petitioner. Perkins & Blair and Fred. W. Kelsey, for respondent.

GRAY, J.

On the 17th day of November, 1910, a suit was pending in the circuit court of Jasper county, in which the Conqueror Trust Company was plaintiff and the petitioner herein and three others were defendants. On that day the plaintiff in that suit caused a notice to be served on the defendants, notifying them that on the 22d day of November depositions in behalf of plaintiff in said cause would be taken before M. B. Davidson, a justice of the peace in Galena township, in said county. After the notice had been served on all of the defendants, except the petitioner, the justice issued a subpœna for him, and delivered the same to the respondent herein, who is the constable of said township. On the 17th the constable subpœnaed the petitioner, and at the same time served him with a copy of the notice to take depositions. The constable made his return showing that the notice and subpœna had been duly delivered to the petitioner. On the 22d the petitioner failed to appear in obedience to the subpœna. At the request of the plaintiff the justice issued an attachment for petitioner, and delivered the same to the constable. On account of the failure of the witness to appear the justice adjourned the taking of the depositions until the next day, which was the 23d. The notice to take depositions recited that the depositions would be taken between the hours of 8 o'clock in the forenoon and 6 o'clock in the afternoon, and, if not completed on the 22d, would be continued from day to day, at the same place, and between the same hours, until completed. At the hour of 2 o'clock on the 23d the constable had been unable to find the witness, where-upon the justice made the following order: "It appearing that the said A. W. Canada has not yet been found, it is therefore ordered that the cause be continued until Thursday, November 24th, 1910, at the hour of ten o'clock a. m. unless the said A. W. Canada be sooner brought before me in obedience to the attachment issued in this cause." On the same day and at the hour of 11 o'clock p. m. the constable, having found the witness, caused him to be taken before the justice in obedience to the writ of attachment. The attorneys for the plaintiff were present, and asked the justice to swear the witness so his deposition could be taken. The witness was sworn to testify without making objections, whereupon the following proceedings were had: (Examination by Mr. Kelsey, plaintiff's attorney.) "Q. Your name is A. W. Canada? A. I absolutely refuse, under the advice of my attorneys, to answer any and all questions. Q. On what grounds? A. What I said. Mr. Kelsey: I ask that the witness be committed to jail until he answers. The Justice: I will have to order you to answer, Mr. Canada. A. I refuse." On account of the refusal of the petitioner to answer the justice issued a commitment, by which the constable was directed to take the petitioner into custody and commit him to prison, there to remain without bail, until he would testify in the cause. At the same time the justice issued the commitment he made another order continuing the matter until the hour of 10 o'clock a. m. of the 24th, at which time the constable was directed to have the petitioner before the justice to give him an opportunity to testify. The petitioner was brought before the justice on the 24th, and he again refused to testify, and he was, by the justice, remanded to...