In re Parte

• Decision Date: 04 April 1882
• Citation: 12 Mo.App. 80
• Parties: EX PARTE J. H. LIVINGSTON.
• Court: Missouri Court of Appeals

12 Mo.App. 80

EX PARTE J. H. LIVINGSTON.

St. Louis Court of Appeals, Missouri.

Apr. 4, 1882.

1. A deposition may be taken after suit is brought and before the issues are made up.

2. If the questions asked have direct reference to the matters charged in the petition, the officer cannot assume that they are irrelevant to the issues to be framed.

3. If the question is neither privileged, nor foreign to the subject-matter of the suit, nor evidently asked for a purpose not contemplated by the litigation, the officer may compel an answer.

4. The word “conditionally,” in the statute concerning depositions, limits not the right to take, but the right to use them.

PETITION for a writ of habeas corpus.

Writ denied.

DAVENPORT & NAPTON, for the petitioner.

W. C. JONES and M. G. SMITH, contra.

LEWIS, P. J., delivered the opinion of the court.

The petitioner applies for a writ of habeas corpus, to inquire into the legality of his imprisonment in custody of the sheriff and jailor of the city of St. Louis. His petition sets forth at length the alleged causes of his detention, with all the facts constituting his claim to be released; so that there is no difficulty in determining, upon the hearing of this application, all the questions that would arise upon an issue and return of the writ. The causes and facts thus shown are substantially as follows:--

Charles H. Peck instituted a suit in the St. Louis Circuit Court, returnable to the April term, 1882, against this petitioner and other defendants, the petition wherein charged that the defendants, by false pretences of the ownership of large means, including valuable lands in Texas and elsewhere, had induced the plaintiff to sell and convey to them a valuable leasehold of the Windsor Hotel, in the city of St. Louis, at the price of $50,000, payable partly in cash, and the remainder in the property described, which was alleged to be worth $30,000, or more; that in the course of their bargaining, there were several modifications of the agreed terms of sale, but finally, conveyances were made on both sides, and the plaintiff put the purchasers in entire possession of the leasehold and its appurtenances; that afterwards, the plaintiff discovered that the said purchasers were in fact impecunious adventurers without substantial means, whose supposed title to the Texas lands was based upon a forgery, and was absolutely valueless; and that other property and securities employed to effect the purchase were worthless, or nearly so.

The prayer of the petition was for a cancellation of deeds, and for such further relief as would place the several parties in statu quo.

After the filing of the petition and service of process in that suit, but before the return term, the plaintiff proceeded to take depositions for the cause, under Revised Statutes, chapter 26, at the office of L. L. Walbridge, a notary public, and caused this petitioner to be subpœnaed as a witness. He appeared accordingly, and was duly sworn to testify. In the course of the examination he was asked these questions: “And you were then trying, in November--at the time I refer to--you were endeavoring to have Mr. Peck take that property at an increased valuation of $5,000, viz., $25,000, instead of $20,000, were you not?” “The arrangement of October 25, 1881, was subsequently modified by a verbal understanding between you and Mr. Peck, was it not?” “Was the arrangement of October 25th modified?” To these questions, as severally put, the petitioner refused to make answer; alleging, as his grounds of refusal, that he (the witness) was a resident of the city of St. Louis, and expected to be here on the day of the trial; that the questions were irrelevant and incompetent; that the act of the witness, in respect to the matter inquired about, could not affect his wife's interest in the property which is now sought to be held for the alleged debt; that the case was returnable to the April term, 1882, of the circuit court of St. Louis, and the return-day of said term had not yet come; the issues in the case had not been made up, and the bill was subject to demurrer; that portions thereof were subject to be stricken out as immaterial and irrelevant; that the entire bill had no equity in it, and that portions of the bill to which the questions related should be stricken out on a motion to that effect. The petitioner persisted in his refusal to answer, whereupon the notary committed him to custody, until he should be ready to answer, or should be discharged according to law.

We have given space to these details, chiefly in order to show that there is no parallel in this case with Ex parte Krieger (7 Mo. App. 367), wherein the prisoner was discharged. There, the petitioner was called upon to testify in a proceeding against himself and others, as officers of a bank, for receiving current deposits after they had knowledge that the bank was insolvent. The questions propounded to him had sole reference to certain dispositions of his own money and property, which could have no possible relation to the matters in issue, and were manifestly sought only to furnish ammunition for another and different mode of attack upon the same parties. To compel answers to such questions would be a patent abuse of the notarial authority, and we held that the petitioner was justified in the refusal to answer. In the present case, nothing of this sort appears. The questions propounded to the witness have a distinct reference to the events detailed in the plaintiff's petition. It cannot be assumed that they are irrelevant to the issues yet to be framed about those events. The notary's decision, that the questions propounded are relevant to the issues, cannot be treated as conclusive or as entitled to the weight of an adjudication by a court of general jurisdiction. But if his power is to be so restricted that he can in no case determine the question of relevancy, to the effect of compelling an answer from the witness, the deposition law might as well be at once abolished. A witness could never be compelled to answer any question whatever if he chose to set up the objection of irrelevancy to the issues. The safe rule is clearly indicated in the authorities, when considered together. If the question be foreign to the subject-matter of the suit pending, and be evidently asked for a purpose not contemplated by the litigation, the officer will not be sustained in any attempt to enforce an answer by proceedings as for a contempt. This is the doctrine of Ex parte Krieger ( supra), and furnishes a conclusive answer to expressed apprehensions of impertinent inquiries into the private affairs of the witness, his political affiliations, etc. But if these objections do not appear, some latitude must be allowed to the notarial discretion. It is idle to urge that the officer can know nothing about the relevancy of a question before the issues have been made up. As was said in Ex parte Munford (57 Mo. 603), the taking of the deposition has no reference to the then existing condition of the cause; but is in order “to secure testimony for the case in its future condition, whatever that may be, at the time of the trial.” The object is to...