Ex parte Mallinkrodt
| Decision Date | 31 March 1855 |
| Citation | 20 Mo. 493 |
| Parties | EX PARTE MALLINKRODT. |
| Court | Missouri Supreme Court |
1. A notary public has no power to commit a witness for refusing to produce books and papers under a subpœna duces tecum.
Habeas Corpus. From the jailor's return to a writ issued by this court, it appeared that the petitioner was in custody under a mittimus issued by a notary public of St. Louis county, for an alleged contempt in not producing certain books and papers in obedience to a subpœna duces tecum issued by the notary, before whom he had been summoned to give his deposition as a witness on behalf of the plaintiffs in a certain cause pending in the St. Louis Circuit Court. The mittimus set forth that the petitioner admitted having the books and papers in his possession when the subpœna was served upon him, and that he had since delivered them to one of the defendants, to avoid the necessity of producing them at the taking of his deposition, whereupon the notary committed him to jail, there to remain until he should produce them, their materiality being made to appear by the affidavit of the agent of the plaintiffs.
Kribben and Henning, for petitioner.
The act of 13th February, 1847, empowered notaries to take depositions under the act concerning “Depositions,” approved January 17, 1845. The fifteenth section of the act referred to authorized the officer empowered to take depositions, to compel the attendance of witnesses, in the same manner and under the like penalties as any court of record of this state.
The eighth section of the act concerning witnesses provides that any person summoned as a witness and attending, who shall refuse to give evidence, which may lawfully be required to be given by such person, may be committed to prison by the person authorized to take his deposition.
The power of notaries, in taking depositions, is strictly statutory. They can do nothing not expressly authorized and under the circumstances which authorize it. There is no power given to an officer taking depositions to commit a witness for refusing to produce books. Powers in derogation of the liberty of the citizen must be strictly construed.
Let the prisoner be discharged, the other judges concurring.
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Ex parte Lucas
... ... v. Dobson, 135 ... Mo. 1, 36 S.W. 238, it suffices to say that no question of an ... unconstitutional law was presented, and therefore it would ... have been wholly obiter to have discussed such a ... point in that case ... Ex ... parte Mallinkrodt (20 Mo. 493), was a case where a witness ... required by a subpoena duces tecum to produce books ... and papers before a notary, refused to do so, and was ... committed to prison ... [61 S.W. 234] ... The notary's authority only extended to commitments for ... contempts in ... ...
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Ex Parte Lucas
...unconstitutional law was presented, and therefore it would have been wholly obiter to have discussed such a point in that case. Ex parte Mallinkrodt, 20 Mo. 493, was a case where a witness required by a subpœna duces tecum to produce books and papers before a notary refused to do so, and wa......
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In re Sanford
... ... this State with reference to the power of a notary public to ... commit. Ex parte Krieger, 7 Mo.App. 367; Ex parte ... Mallinkrodt, 20 Mo. 493 ... Delaney & Delaney for respondent ... (1) ... ...
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Ex Parte Sanford
... ... 17, 31 Atl. 522, 28 L. R. A. 242; In re Abeles, 12 Kan. 451; In matter of Merkle, 40 Kan. 27, 19 Pac. 401; Ex parte McKee, 18 Mo. 599; Dogge v. State, 21 Neb. 272, 31 N. W. 929; De Camp v. Archibald, 50 Ohio St. 618, 35 N. E. 1056, 40 Am. St. Rep. 692; Ex parte Mallinkrodt, 20 Mo. 493; Haight v. Lucia, 36 Wis. 355; Ex parte Gfeller, 178 Mo. 248, 77 S. W. 552; Ex parte Goodin, 67 Mo., loc. cit. 641; Ex parte Munford, 57 Mo. 603. It is conceded, and it is true, that there is no statute in this state conferring upon the board of equalization, in express terms, the power ... ...