Ex Parte Schneider

• Decision Date: 03 May 1927
• Docket Number: No. 20053.,20053.
• Citation: 294 S.W. 736
• Parties: Ex parte SCHNEIDER.
• Court: Missouri Court of Appeals

294 S.W. 736

Ex parte SCHNEIDER.

No. 20053.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Rehearing Denied June 7, 1927.

"Not to be officially published."

Application by Christian F. Schneider for writ of habeas corpus to be directed to the Sheriff of the City of St. Louis. Subsequent to the issuance of the writ and Sheriff's return, the petitioner filed an answer. Petitioner discharged.

Wm. W. Schneider, of St. Louis, for petitioner.

Taylor R. Young, John J. Wolfe, and Oliver T. Remmers, all of St. Louis, for respondent.

BENNICK, C.

Upon the application of petitioner, Christian P. Schneider, representing that he was unlawfully deprived of his liberty by the sheriff of the city of St. Louis, under and by virtue of a warrant of commitment issued by a special commissioner, appointed by the circuit court of the city of St. Louis for the purpose of taking certain depositions, our writ of habeas corpus was caused to issue, to which the sheriff duly made return, whereupon an answer was filed by petitioner.

It appears that Christian W. Schneider, a son of petitioner, and Lenora K. Schneider were husband and wife, and that of this marriage two children were born, a son, Dudley King, six years of age, and a daughter, Betty Jean, eight years of age. On February 15, 1926, the parties separated, the mother retaining the custody of the daughter and the father that of the son, since which date the mother has not been informed as to the whereabouts of her husband and son, Dudley King. Two days after the separation an action for divorce was filed by the mother, asking, among other things, the custody of both children. It appears, however, that such action as yet has not been determined.

The petitioner is an attorney at law, and has purported to represent his son, Christian W. Schneider, throughout all the aforesaid marital difficulties. On November 19, 1926, Lenora K. Schneider, as plaintiff, instituted an action in the circuit court of the city of St. Louis against petitioner, his wife, Susan Schneider, and two sons, William W. Schneider and Jules F. Schneider, as defendants, alleging in her petition, in addition to the facts above mentioned, that said defendants, for the sole purpose of compelling plaintiff to obtain a divorce from her husband upon terms satisfactory to defendants, had entered into a conspiracy to deprive plaintiff of her rights as a mother in and to the companionship, love, and devotion of her infant son, Dudley King, and, in furtherance of said conspiracy, had caused her said son to be secreted, and had prevented her from hearing from him or learning of his whereabouts; that the defendants threatened that, until such time as she would obtain a divorce from her husband upon terms satisfactory to them, they would continue to secrete said child; and that defendants had contributed money toward the accomplishment of their purpose. Plaintiff prayed damages in the sum of $20,000.

Subsequently a special commissioner woe appointed by the circuit court for the taking of certain depositions on the part of plaintiff. During the taking of said depositions, and while petitioner was on the stand, he was asked upon several occasions if he knew the whereabouts of his grandson, Dudley King, which said questions petitioner refused to answer, upon the ground that his only information would be through communications from his son, Christian W. Schneider, indicating that the child was with him, and that such communications, being between attorney and client, were privileged. Such objections were sustained by the special commissioner, whereupon the rulings were certified to the circuit court, wherein the special commissioner was overruled, and the petitioner ordered to answer such questions.

When the taking of the depositions was resumed, the petitioner again refused to answer such questions, assigning certain reasons which, for our own convenience, we have grouped in the following order: First, that the questions called for the contents of privileged communications between attorney and client, and that the petitioner did not have the permission of his client to disclose the contents of such communications, but, to the contrary, had been specifically instructed not to divulge the same; second, that plaintiff had threatened to cause petitioner's client to be arrested and punished for wife and child abandonment whenever his whereabouts should be ascertained, as was evidenced by a letter received by petitioner from plaintiff's attorney containing said threat; third, that the evidence sought to be elicited was contained in letters which themselves constituted the best evidence, and which petitioner would produce at the trial, if required to do so.

Thereupon, at the request of plaintiff's attorney, petitioner was committed to the custody of the sheriff until such time as he should give the desired evidence or be otherwise discharged by law.

While we are aware that it was the address of the child, Dudley King, that was specifically sought, we are nevertheless mindful that the disclosure of such information by petitioner would also have necessitated the disclosure by him of the address of the child's father, petitioner's client, so that, in the consideration of the questions before us, it is obvious that the propriety of petitioner's refusal to answer must be determined from both angles.

At the outset, there is a gentle hint thrown out that the ordinary relation of attorney and client did not prevail in this case between petitioner and Christian W. Schneider, for the reason that such parties were father and son, and no fee was paid or demanded. We regard this suggestion as wholly without merit. The relationship between attorney and client is contractual, and is created by the employment, by a client capable of entering into contractual relations, of an attorney possessing authority to practice his profession. If the necessary elements we have noted are present, the question of blood relationship is unimportant; nor is the relationship, if otherwise established, affected by the fact that the client pays no fee for the services obtained. Cross et al. v. Riggins, 50 Mo. 335; Bacon v. Frisbie, 80 N. Y. 394, 36 Am. Rep. 627; 40 Cyc. 2367, and cases cited.

It is undoubtedly the general rule that all confidential communications between attorney and client, made because of the existence of such relationship, and concerning the subject-matter of the attorney's employment, are privileged, and that an attorney cannot, without his client's consent, divulge information which he has received in confidence from his client in the course of his professional employment. Not only was this the rule at common law, but it has been embodied in statutory enactments in most of the states. The rule is founded on the broad ground of public policy, and is intended to secure all men in the full enjoyment of their civil rights, and must be construed with reference to the policy supporting it.

Turning to the particular facts of the case at bar, we find no pretense that petitioner possessed any information as to the whereabouts of his client's son, save that which came to him in letters received from his client. Petitioner had been employed to represent his client...