Ex parte Whicker

• Decision Date: 01 February 1915
• Citation: 173 S.W. 38,187 Mo.App. 96
• Parties: In the Matter of the Application of HENRY W. WHICKER for a Writ of Habeas Corpus; HARRY B. WOLF, Appellant
• Court: Kansas Court of Appeals

173 S.W. 38

187 Mo.App. 96

In the Matter of the Application of HENRY W. WHICKER for a Writ of Habeas Corpus; HARRY B. WOLF, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1915

Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.

Judgment affirmed.

W. F Riggs for appellant.

William Thompson for respondent.

OPINION

TRIMBLE, J.

--Harry B. Wolf appeals from an order of the circuit court of Jackson county, Missouri, made in a habeas corpus proceeding wherein the petitioner, Henry W. Whicker, was discharged, and an attorney's fee of $ 10 together with the costs of the proceeding were taxed against the appellant.

Wolf filed a suit in a justice court against the Minneapolis, St. Paul and Sault Ste. Marie Railway Company. The record is silent as to whether or not summons was ever issued and served on the defendant, and also as to whether said railway is a resident or foreign corporation, or has a line of railway in Jackson county. On December 3, 1913, Wolf desiring to take depositions in said case, attempted to give notice thereof to the defendant therein and went about it in this manner: He delivered a copy of such notice to Henry W. Whicker and endorsed upon the original of such notice an affidavit which, omitting jurat, is as follows:

"State of Missouri, County of Jackson--ss.

Harry B. Wolf, of lawful age, being duly sworn, upon his oath states that on December 2, 1913, he served defendant with a copy of within notice to take depositions, by delivering a copy thereof to Henry W. Whicker, its clerk, agent and servant in charge of its office at 441 Sheidley building, Kansas City, Missouri.

HARRY B. WOLF."

The notary before whom the depositions were to be taken issued a subpoena for Whicker and the same was served upon him. When it was discovered that Whicker would not appear nor obey the subpoena, the notary issued an attachment for him, requiring the sheriff to take and keep him unless he should be discharged by due course of law, and upon such writ the sheriff took Whicker into custody.

Thereupon Whicker brought habeas corpus in the circuit court. The ground of Whicker's objection to the validity of the notary's action was that the notary had no jurisdiction to take the depositions, first, because no summons was served upon the defendant in the case of Wolf v. the Railway; second, because no notice of the taking of the depositions was ever served upon the defendant Railway as required by law.

After hearing the evidence, the circuit court found that Whicker was being unlawfully restrained of his liberty and ordered him to be discharged, and ordered that an attorney's fee of $ 10 be taxed in favor of Whicker and against Harry B. Wolf as the party litigant in the case of Wolf v. the said Railway in whose behalf the refused evidence was required; and the court rendered judgment in favor of said Whicker and against Wolf for the said sum of $ 10 and the costs.

Appellant's first contention is that the petition for a writ of habeas corpus was wholly insufficient. It may be remarked here that no attack whatever was made on the petition in the trial court. But we do not think the petition was insufficient. It stated the fact of his being restrained and the facts by which such restraint came about, and alleged that the notary had no authority to take the depositions because no summons was ever served on defendant in the case in which the depositions were proposed to be taken and that no notice had ever been given defendant of the proposed taking thereof. Petitioner set out the facts as fully and as explicitly as it was possible for him to do. He could not be more explicit since the acts constituting the facts rendering the notary's attempt to take depositions valid or invalid were all within the breast and knowledge of the plaintiff in the case in which the depositions were sought to be taken. The cases cited by appellant on the insufficiency of the petition have no application. In many of them, the petition had been directly attached in the hearing of the habeas corpus, and this fact is explicitly recited in the cases of prohibition or certiorari brought thereon in the Supreme Court. The case of State ex rel. v. Dobson, 135 Mo. 1, 36 S.W. 238 has no application. The opinion says on page 8, "the petition does not state nor pretend to state all the facts concerning the imprisonment and the true cause thereof; there is not even an allusion to those facts or to the cause of detention contained in the petition." But in the petition here, the facts are stated and the fact of want of notice is given as the ground of the invalidity of the act by which petitioner is restrained of his liberty. And there are other reasons why the Gibson case and others cited have no application. There is no presumption of jurisdiction in favor of a notary as there is in a case where the petitioner shows that his liberty is restrained by the judgment of a court of competent jurisdiction. [Ex parte Krieger, 7 Mo.App. 367, l. c. 369; In re Green, 126 Mo.App. 309, l. c. 316.]

The authority of the notary to take depositions depends upon whether notice was served upon defendant in the case wherein the depositions are to be taken. He can only exercise his authority in pursuance of such notice. [In re Green, 126 Mo.App. 309, l. c. 317; Secs. 6392-4-6, R. S. Mo. 1909.]

There was no notice served upon the Railway defendant in the suit. Section 6394, Revised Statutes 1909, in relation to the service of notice to take depositions, says: "In case the adverse party is a railroad . . . such notice may be served by delivering a copy thereof to any station agent of such railroad corporation." If it be true that service of notice to take depositions on the local agent of a foreign corporation upon whom a summons to the corporation could be legally served is a valid service of such notice on the corporation, this does not help appellant. The return shows on its face that Whicker was not a station agent, so that the notice did not comply with section 6394. It did not show that there were no station agents of the defendant railway in the county on whom notice could be served; nor did it show that Whicker was an agent upon whom summons could be served pursuant to section 1766, Revised Statutes 1909. Petitioner made a showing that no notice to take depositions was served upon the defendant railway. So far as the record shows, no contrary evidence was offered to show that any notice was given. The notary was without authority to take depositions, and consequently was without authority to subpoena Whicker, and, of course, had no authority to attach or commit him for failing to obey the subpoena. And this authority or jurisdiction can be inquired into in a hearing on the writ of habeas corpus. [Ex parte...