Hammond Packing Co. v. State

• Decision Date: 14 January 1907
• Citation: 100 S.W. 407
• Parties: HAMMOND PACKING CO. v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Arkansas Supreme Court

Page 407

100 S.W. 407

HAMMOND PACKING CO. v. STATE.^*

Supreme Court of Arkansas.

January 14, 1907.

Appeal from Circuit Court, Pulaski County; E. W. Winfield, Judge.

Action by the state of Arkansas against the Hammond Packing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint charged that on the dates named the defendant was transacting business in Pulaski county, Ark., and that it had created, entered into, and become, and was then, a member of and a party to a pool, trust, agreement, combination, confederation, and understanding with certain other corporations, partnerships, individuals, persons, and associations of persons engaged in lines of business similar to that conducted by it, among which were corporations, 20 or more in number, to regulate and fix the selling price of certain articles of manufacture, merchandise, commodity, or convenience, to wit, the commercial products of slaughtered live stock, and to maintain such price when so regulated and fixed. Where the defendant had created, entered into, or become a member of the pool, trust agreement, combination, confederation, or understanding, how it had created, entered into, or become a member of it, when it was done, whether one day or ten years before the date charged, or what the terms or conditions of such confederation were, is wholly undisclosed. It is alleged that the arrangement was made to regulate and fix the selling price of the commercial products of slaughtered live stock, and to maintain the price when regulated and fixed; but there is no intimation as to whether the price so fixed is of general application or local, or whether it applies to one market or to the markets of the country generally. Defendant filed a motion for a rule on plaintiff to make the allegations of its complaint more definite and certain, so as to show when the pool, trust, etc., charged in the complaint was created, where it was created, what its terms and conditions were, and in what respect it constituted such pool or trust in violation of the statute, and to show what articles were embraced within it. This motion was overruled, and defendant excepted. The defendant also filed a motion for an order directing that all depositions to be taken outside of Pulaski county for use in this cause should be taken upon interrogatories, relying upon the fifth subdivision of section 3177 of Kirby's Digest. This motion was overruled, and defendant excepted.

The plaintiff presented an application to the court in which it alleged that 16 persons named were officers or employés of the defendant company; that they resided outside the state of Arkansas, and in or near the city of Chicago, Ill.; that the plaintiff desired to take their testimony; that they were unwilling and hostile witnesses, and, as the relator believed, would not, in response to written interrogatories, make full answers; that the relator could have no accurate knowledge as to what facts were within the knowledge of said persons, but that they had peculiar and sole knowledge as to that, and that the relator could not frame interrogatories so as to elicit the facts within their knowledge; that the persons named had in their possession at the Chicago offices of the defendant numerous books, papers, and documents bearing upon the issues in the case; that the precise description of the books was peculiarly within the knowledge of the persons named, and that it was impossible for the relator to so frame interrogatories or demands as to call for the production of such books, papers, and documents as are relevant to the issues in this case; that on account of the facts above set out it was necessary that the depositions of these witnesses be taken orally. Plaintiff asked that the defendant be required to produce the persons named, and the books, papers, and documents in their possession relating to the issues in the case, before a commissioner in Chicago, to be authorized by this court to take depositions. The defendant resisted the motion, and filed a counter motion in which it asked that the plaintiff be required to set out specifically what it expected to prove by each witness whose production was asked, and also the description of any books it desired to have produced, and to show what said books contained that was material to the issues in the case. In response to this motion the Attorney General filed an affidavit stating that he did not know what could be proved by any one of the witnesses asked for, or exactly what information material to the issues in the case was contained in any book or paper. The court thereupon sustained the motion for the appointment of a commissioner to take depositions in Chicago, and directed the defendant to produce the persons named in the motion of the plaintiff, and also all books, papers, and documents in the possession or under the control of either of said parties relating to the merits of the cause or to any defense therein. It authorized the commissioner to issue a notice, directed to the president of the defendant company, that the testimony of the persons named was desired, and requesting him to have the persons, with the books, papers, and documents referred to, at the office of the commissioner on the day named, to give their testimony, and to have them attend at said place from day to day and from time to time until the taking of their testimony should be completed, and at such places and times to produce the books, papers, and documents whenever demanded. The court refused to require any showing to be made as to what any one of the parties called for knew material to the issues in the case, or as to what any of the books contained material to the issues in the case, or to designate in any manner the books to be produced. The defendant excepted to its action in these respects, and also excepted to its action in calling upon it to produce either witnesses or books, papers or documents. The defendant failed to produce the witnesses, or books, papers, and documents, on the ground that the court was not warranted in making the order, and that the order called upon it to surrender rights in the enjoyment of which it was guarantied by the Constitution of the United States and of the state of Arkansas. Upon the failure of the defendant to comply with the order, plaintiff filed its motion to strike its pleadings from the files and for judgment by default. To this motion a response was filed by the defendant, setting out many grounds of objection to the motion; but the court sustained it, struck the demurrer and answer from the files, and proceeded to render judgment by default.

Act Jan. 23, 1905 (Anti-Trust Act; Acts 1905, pp. 9, 10), §§ 8, 9, are as follows:

"Sec. 8. Whenever any proceeding shall be commenced in any court of competent jurisdiction in this state by the Attorney General or prosecuting attorney against any corporation or corporations, individual or individuals, or association of individuals, or joint stock association or copartnership under the law against the formation and maintenance of pools, trusts of any kind, monopolies or confederations, combinations or organizations in restraint of trade, to dissolve the same or to restrain their formation or maintenance in this state, or recover the penalties in this act provided, then and in such case, if the Attorney General or prosecuting attorney desires to take the testimony of any officer, director, agent, or employee of any corporation, or joint stock association proceeded against, or in case of a copartnership, any of the members of said partnership, or any employee thereof, in any court in which said action may be pending, and the individual or individuals whose testimony is desired are without the jurisdiction of this state, or reside without the state of Arkansas, then in such case, the Attorney General or prosecuting attorney may file in said court in term time, or with the judge thereof in vacation, a statement, in writing, setting forth the name or names of the persons or individuals whose testimony he desires to take, and the time when and the place where he desires said persons to appear; and thereupon the court or judge thereof shall make an order for the taking of said testimony, of such person or persons and for the production of any books, papers and documents in his possession or under his control relating to the merits of any suit, or to any defense therein, and shall appoint a commission for that purpose, who shall be an officer authorized by law to take depositions in this state, and said commission shall issue immediately a notice, in writing, directed to the attorney or attorneys of record in said cause, or agent, or officer, or other employee, that the testimony of the person named in the application of the Attorney General or the prosecuting attorney is desired, and requesting said attorney or attorneys of record, or said officer, agent or employee, to whom said notice is delivered, and upon whom the same is served, to have said officer, agent, employee, representative of said copartnership, or agent thereof, whose evidence it is desired to take, together with such books, papers and documents, at the place named in the application of the Attorney General, or the prosecuting attorney, and at the time fixed in said application, then and there to testify: Provided, however, that such application shall always allow in fixing said time the same number of days' travel to reach the designated place in Arkansas that would now be allowed by law in case of taking depositions: Provided, also, in addition to the above named time, six days shall be allowed for the attorney or attorneys of record, or the agent, officer or employee on whom notice is served, to notify the person or persons whose testimony is to be taken. Service of said notice as returned in writing may be made by any one authorized by law to serve a subpœna.

"Sec. 9. Whenever the persons mentioned...