Finn v. Winneshiek Dist. Court
| Decision Date | 18 December 1909 |
| Citation | 123 N.W. 1066,145 Iowa 157 |
| Parties | JOHN FINN, Plaintiff, v. THE WINNESHIEK DISTRICT COURT and L. E. FELLOWS, one of the judges of the Thirteenth Judicial District, Defendant |
| Court | Iowa Supreme Court |
ORIGINAL Certiorari Proceedings to the District Court of Winneshiek County and HON. L. E. FELLOWS, Judge.
Affirmed.
E. W Cutting and John McCook, for plaintiff.
Frank Sayre and N. Willett, for defendants.
In November of the year 1908 the treasurer of Winneshiek County made an assessment and listed certain moneys and credits belonging to plaintiff, Finn, for the years 1904, 1905, 1906 and 1907. These assessments were upon moneys, bonds, stocks loans, and credits alleged to have been omitted from assessment for the years stated, the total amount of taxes assessed being $ 1,978.82. Plaintiff, Finn, filed with the county treasurer his objections to these assessments, claiming among other things, that the property was not liable to assessment by the county treasurer for various reasons, among others being, first, that the property was not omitted from taxation; and, second, that the money and property were not taxable in this state, for the reason that he was a nonresident of this state, and during all the time in question was a resident of the state of Wisconsin. The treasurer overruled these objections, and made the assessments hitherto stated, and plaintiff Finn duly appealed to the district court. When the case reached that court, Finn filed what he called his appeal and cause of action, consisting of forty-five different paragraphs, in which he asked that the assessment made by the treasurer be adjudged void, and that the same be canceled and set aside. While the case was pending upon this appeal, plaintiff, Finn, had his deposition taken, and in his direct examination gave testimony with reference to the notice served upon him by the county treasurer and as to his residence since December of the year 1905. He also testified to various trips made to Winneshiek County after he claims to have moved to Wisconsin, and gave the objects and purposes of these trips. He further testified that the securities listed by the county treasurer were executed and received by him after he had moved to Wisconsin. He also testified to the payment of all taxes regularly assessed against him for the years 1904 and 1905.
The county was represented by counsel at the taking of the deposition, and upon cross-examination many and diverse interrogatories were propounded to the witness relating to the amount of his moneys and credits, the record, if any, kept by him thereof, and where the securities were kept. Witness was also asked to produce his bank book, his private books of account, whether or not he kept an account with a bank in Decorah, and, if so, to produce his account with that bank. He was also asked as to whether or not he had a safety deposit box in a bank at Decorah, and also as to the amount of his deposits in various banks during the time in question. Further he was asked as to where his securities were kept, and as to whether or not he was assessed in Wisconsin upon his moneys and credits, and as to whether he paid any taxes in that state. He was also asked to furnish a list of his moneys and credits during each of the years in question. He was further asked as to various loans and trades made by him; as to the returns made by him to the assessor for the years 1904 and 1905, and as to whether or not he had ever sworn to any of the returns made by him to the assessor. Questions were also asked for answers tending to show that he made loans and took securities in the names of other persons than himself, and that his removal to Wisconsin was to escape taxation. Further he was asked about property acquired by him from a deceased brother. Witness was also asked to produce certain notes and mortgages referred to by him in direct examination. Each and all of these questions the plaintiff refused to answer, and he also refused to produce any of the books of account, bank books, papers, securities, notes, etc., called for by counsel who was then cross-examining him.
The deposition was taken before a commissioner at Decorah, Iowa, pursuant to an order of court that the case be tried as in equity upon depositions, documentary and other written testimony. The deposition was returned to the district court by the commissioner, and it showed that plaintiff, as a witness, refused to answer something like three hundred and seven cross-interrogatories propounded to him by counsel representing the county. Upon the filing of the deposition counsel for the county made a motion and application to the district court for an order compelling plaintiff to answer all the questions propounded, to produce his books of account, bank books, list of securities, etc., and that upon his failure to do so he be punished for contempt. Objections to this were filed by plaintiff, and upon hearing the trial court made the following order:
It is therefore ordered that upon notice as required for taking depositions on notice, given by the defendant to plaintiff, or his attorneys, the commissioner before whom the deposition was taken will propound to the plaintiff such questions, which plaintiff refused to answer, as the defendant's attorney shall request to have propounded, and it is the order that the plaintiff then and there appear and make full and complete answer to all such questions, and furnish a complete itemized list of his moneys and credits, owned by him on the 1st day of January of each of the years for which he was assessed by the treasurer, from which assessment this appeal was taken; such complete list to be made a part of the deposition. It is probable that an answer to a few of those questions may obviate the necessity of answers being required to all of them, and it is also probable that answers given might make it desirable on the part of defendants, or their attorneys, to ask other questions than those to which objections have been made, and which plaintiff has refused to answer; and, in view of what may be the changed conditions, the defendants' attorneys will be permitted to make such cross-examination of the witness as they may deem proper under the circumstances, and the plaintiff shall have the right, at the conclusion of the cross-examination, to such re-examination as under the circumstances may be deemed proper. And all the interrogatories, with the objections and the answers thereto as given by the witness, shall be properly certified to by the commissioner, and attached to and made a part of the deposition now on file, and to enable the commissioner to do so, and the parties to use such deposition, it is ordered that the clerk of this court deliver to the commissioner the deposition on file to be used for the purposes herein contemplated, and upon the conclusion of the taking of the deposition, and the same being properly certified to by the commissioner, the same shall be refiled in the clerk's office. Full, fair, truthful, and complete answers by the witness to the interrogatories propounded should furnish all the desired information, without the production of the books and papers called for. The court will not therefore at this time make any order for the production of books and papers. Whether or not such an order will be made in the future will depend upon how satisfactory the testimony is after the further examination of the plaintiff--to all of which plaintiff excepts.
The application made by counsel for the county was held sufficient, in form and in substance, as a petition for the production of books and papers under section 4655 of the Code; but, as will be noticed the trial court did not then grant this petition. Instead of complying with this order plaintiff sued out a writ of certiorari from this court to test the legality of the proceeding, and it is now claimed that the order made by the district court was without authority, and was and is void for the reason (1) that the matters inquired about were not cross-examination, and were wholly irrelevant and immaterial to the issues presented; (2) that plaintiff could not and should not be required to produce evidence against himself; (3) that his books, papers, accounts, notes, etc., were sacred to him, and in the nature of trade secrets, and that he should not be required to produce them, especially as the matters inquired about have no relevancy to the issues then before the court, and the object undoubtedly was to conduct a "fishing expedition"; (4) that the order constitutes an invasion of private rights guaranteed by section 8, article 1, of the Constitution of Iowa, and was and is in violation of both the federal and state Constitutions prohibiting unreasonable searches and seizures; and (5) that the trial court was without jurisdiction to make the order complained of. Many other incidental matters are argued, which might properly be presented if...
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