In re Merkle

• Decision Date: 06 October 1888
• Parties: In the matter of the Petition of RICHARD L. MERKLE for a writ of Habeas Corpus
• Court: Kansas Supreme Court

19 P. 401

40 Kan. 27

In the matter of the Petition of RICHARD L. MERKLE for a writ of Habeas Corpus

Supreme Court of Kansas

October 6, 1888

Original Proceedings in Habeas Corpus.

PETITION filed in this court on August 9, 1888; the opinion, filed at the session of the court in October, states the material facts.

Petitioner remanded to custody of sheriff of Sedgwick county.

Houston & Bentley, for petitioner.

Moore & Douglas, contra.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This is an original application in this court by the petitioner Richard L. Merkle, for a writ of habeas corpus, and to be discharged from the custody of the sheriff of Sedgwick county. A notary public before whom the deposition of Merkle was being taken on behalf of the plaintiffs in an action then and now pending in the Sedgwick district court, wherein Charles Sullivan et al. are plaintiffs and the Steinhauser Merkle Supply Company is a defendant, had committed him to the jail of the county for refusing to answer certain questions propounded to him as such witness by the attorneys of the plaintiffs in that action. It is alleged on behalf of the petitioner that the deposition was not being taken in good faith, and would not be used on the trial; that the plaintiffs were on a fishing expedition; that the question was an immaterial one, and was not and never would become material under the issues and pleadings; that the petitioner is a bona fide resident of Sedgwick county, and that he did not intend or expect to change his place of residence before the final termination of the cause, and would be present and testify at the trial thereof; and that the order of commitment is void and without jurisdiction. It appeared on the hearing that the witness had been the secretary of the Steinhauser Merkle Supply Company before its failure, and was still in charge of the remaining goods of the company, selling them and closing out the stock on behalf of his father, who claims to have a chattel mortgage thereon; that Sullivan and others had commenced their action against the supply company on the 18th day of July, 1888, on a promissory note executed by the supply company, and had caused an attachment to be issued and levied on the property of the company. The causes stated for the attachment in the affidavit of the plaintiffs are, among others, that the Steinhauser Merkle Supply Company is a foreign corporation; that it is about to remove its property, or a part thereof, out of the jurisdiction of the court with the intent to defraud its creditors, and is about to assign, remove, and dispose of its property, or a part thereof, with the intent to defraud, delay, and hinder its creditors, and had assigned, removed and disposed of its property with a like intent. In the course of the examination of the petitioner as a witness, he disclosed the fact that on the 2d day of May, 1888, the Steinhauser Merkle Supply Company had executed a chattel mortgage on its stock of merchandise to his father, who some time prior thereto had been the principal stockholder of the company. He was then asked, "What was that chattel mortgage given for?" This question, by the advice of counsel, he declined to answer. It was repeated, and he again declined to answer it. The notary then instructed him to answer the question, and he again declined, when he was committed by the notary for contempt in refusing to answer. The deposition was being taken on the 27th day of July, 1888. The petitioner is not a party to the action, but is connected...