Ex parte Munford

• Decision Date: 31 October 1874
• Citation: 57 Mo. 603
• Parties: Ex Parte JAMES E. MUNFORD Petitioner in Habeas Corpus.
• Court: Missouri Supreme Court

57 Mo. 603

Ex Parte JAMES E. MUNFORD Petitioner in Habeas Corpus.

Supreme Court of Missouri.

October Term, 1874.

J. E. Jones & J. M. Holmes, for Petitioner.

Cline, Jamison & Day, and T. W. Stratton, and E. W. & E. R. Tittmann, Contra.

LEWIS, Judge:--

The petitioner avers that he was subpœnaed to appear before C. P. Ellerbe, a notary public, and give his deposition in a cause alleged to be pending in the St Louis Circuit Court, wherein Alexander Turnbull and others were plaintiffs and James E. Munford and others defendants. That upon his failure to obey the subpœna, he was compelled by attachment to appear; but then declined to testify or to answer any of the questions propounded, because there was, in fact, no such suit pending as alleged, within the meaning of the statute which authorizes the taking of depositions. That thereupon he was committed to jail by the notary, from which incarceration he here demands to be released, upon the same ground which was the basis of his refusal to testify.

The statute provides that “any party to a suit pending in in any court in this State may obtain the deposition of any witness, to be used in such suit, conditionally.” (Wagn. Stat., 522.)

It appears from the testimony that a suit was instituted in usual form in the court and between the parties above mentioned, but a demurrer to the petition, for failure to state a cause of action, and for other objections, was sustained by the Circuit Court. That leave was given the plaintiffs to file an amended petition within thirty days, which period has not yet expired. That no amended petition has yet been filed. It is claimed, therefore, that there is no “suit pending” within the meaning of the statute.

The argument is pressed with much ability, that there cannot be a suit, without a cause of action; that a cause of action can only appear in a sufficient petition; and that, the court having pronounced the petition insufficient, and the plaintiffs having abandoned it in obtaining leave to amend, there is therefore no petition in the case, and, necessarily, no suit about which testimony can be taken.

I am unable to yield to the force of these positions in the face of the law as I find it. It may have been very unwise in the legislature to open a door for the taking of testimony when neither the notary nor the witness can know what facts are to be tried. And yet almost every application of the statute abounds with such results. Our Supreme Court has decided that a deposition may be taken when the defendant's property has been attached and before summons served or publication made. At such a stage of proceedings it is impossible to know what facts will be denied, or whether a single word of the testimony taken will be applicable to the issues as ultimately framed. In Ex parte McKee, (18 Mo., 599), the court comments on the impracticability of similar suggestions, where the officer “cannot know the aspect which the case will probably assume at the trial.” Even if the issues are framed when the deposition is taken, they may be wholly changed before it can be used on the trial. I think the entire argument is based on an erroneous view of the policy of the statute concerning depositions. It has no reference, as I understand it, to the state of the pleadings or any other existing condition of the cause in court. Its object is to secure testimony for the case in its future condition, whatever that may or may not be, at the time of trial. It is intended to guard against the contingencies of death, disease, or removal of witnesses before the trial is reached. Hence the law only requires that the suit shall be pending. The institution of the suit is the only guaranty demanded of the plaintiff's earnestness. He may then take the deposition. But every question of its necessity or admissibility, for whatever reason, is specially reserved for the trial court to pass upon at the proper time. Formerly, the statute authorizing depositions stipulated, as a pre-requisite, that the testimony should be ““necessary” in the cause. It might then have been plausibly argued that testimony could never be necessary, in the absence of any petition for it to sustain. But in 1835, this condition was stricken out, and from thence hitherto nothing has been required but that a suit should be pending.

These considerations leave us no excuse for attempting to strain the words of the statute aside from their plain, literal meaning. What is a “suit?” Whatever it may have been formerly, it is now, according to Chief Justice Marshall, understood to be...