In re Parte

• Decision Date: 17 June 1879
• Citation: 7 Mo.App. 367
• Parties: EX PARTE J. PHILIP KRIEGER.
• Court: Missouri Court of Appeals

7 Mo.App. 367

EX PARTE J. PHILIP KRIEGER.

St. Louis Court of Appeals, Missouri.

Jun. 17, 1879.

1. In a proceeding under the Habeas Corpus Act to bring up a prisoner charged with contempt in refusing to answer interrogatories propounded before a notary-public taking depositions, there is no presumption of jurisdiction in favor of the notary, and no adjudication as to the jurisdictional fact which the court is bound to respect; and it is the duty of the court to examine whether the commitment is within the intent of the Legislature, and within the meaning and spirit as well as the letter of the law.

2. The law does not confer upon a notary-public the arbitrary power to compel a witness to answer all questions, however incompetent, irrelevant, and inadmissible, which may be asked, and a refusal to answer is not necessarily a contempt.

3. To entitle a notary to commit for contempt, he must exercise his functions not only formally, but substantially in the manner and under the circumstances contemplated by law.

4. Where in taking depositions before a notary-public questions which may be competent under possible issues in the case are asked for the evident purpose of ascertaining facts to be used against the witness in another proceeding, a refusal to answer is not a contempt.

5. A deposition under the statute does not correspond to a bill of discovery in chancery, and it is an abuse of the deposition law to take depositions merely for the purpose of discovery.

6. Where a notary commits for a refusal to answer a question to which the courts would not have compelled an answer, the matter addresses itself directly to the courts.

7. For a flagrant abuse of process the notary is liable, and the attorneys engaged in promoting the proceeding are punishable by disbarment or otherwise.

PETITION for habeas corpus.

Petitioner discharged.

E. T. FARISH and H. A. CLOVER, for petitioner.

R. S. MACDONALD and J. R. HARRIS, contra.

HAYDEN, J., delivered the opinion of the court.

The question presented in the present case appears to be essentially different from that raised by the facts of any application for habeas corpus which has been passed on in this State. The return, indeed, sets out the case of a commitment by a notary-public engaged in taking a deposition of a witness in a pending suit, on the ground of refusal of such witness to answer questions put to him by the notary. But the return is to be considered in connection with the facts which appear, none of which are seriously disputed, though their relevancy is contested by the counsel for the sheriff. The bearing of these facts on the legal question presented will hereafter appear.

The question of jurisdiction, and of the power of the committing officer, is the only one open to inquiry in this proceeding. Under the thirty-third and thirty-sixth sections of our Habeas Corpus Act, it is the duty of this court to remand the petitioner if the commitment plainly and specially charges a contempt, and if the officer had authority to commit for the contempt which is chaaged. Wag. Stats. 689, 690; Ex parte McKee, 18 Mo. 599; Ex parte Goodin, 67 Mo. 647.

But if the officer had no such jurisdiction, if it appears that in the matter in which he acted in committing the petitioner he had no authority or power to commit, the case is not within the purview of the statute. So, if, having jurisdiction of the subject-matter and of the person, a court, even of general jurisdiction, exceeds that jurisdiction by an excessive sentence, and this excess is patent on the face of the record, the judgment is considered as not merely erroneous or irregular, but void, and the petitioner entitled to his discharge. Ex parte Page, 49 Mo. 291; The People ex rel. v. Liscomb, 60 N. Y. 559. The inquiry is as to the jurisdiction of the court to render the particular judgment, and not merely to render a judgment in the general matter. In the case of a court of general jurisdiction, however, every presumption is in its favor; and it must be assumed that such court has passed upon the jurisdictional facts, and thus its judgment cannot be affected by matters dehors the record in a collateral proceeding like habeas corpus. Ex parte Toney, 11 Mo. 661. But in the case of a court of limited jurisdiction, and still more in the case of a mere notary or other officer to whom the power to take depositions is given, there is no similar presumption. A contempt, indeed, is in itself a distinct and substantive offence, and in the case of a court of general jurisdiction there is no distinction in principle between a judgment pronounced after trial upon indictment, and a summary committal for contempt, so far as concerns the question of collateral impeachment. In either case the court has pronounced on the jurisdictional facts, and the presumption is that it has decided correctly. But the presumption of jurisdiction which attaches to the higher court does not exist in reference to the inferior court or officers. The statute gives the power to the officer, under certain circumstances, to commit for contempt, but does not undertake to change the important rule in regard to courts of general and courts of limited jurisdiction. When, as here, the question turns on the power of the inferior officer and his jurisdiction, it must be remembered that there has been no adjudication as to the jurisdictional facts which any court of justice is bound to respect. Here there is no judgment, however irregular and informal, from which the imprisoned party has the right to appeal; nor, on the other hand, has the person concerned had that security which must always exist where the proceedings have taken place under the sanction of judicial responsibility, and in an open court of justice. The officer taking a deposition is often ignorant alike of the law and the issues. It is through the writ of habeas corpus that a person imprisoned for contempt by a notary, or other similar officer taking a deposition, secures the first authoritative ascertainment as to the jurisdictional facts and the power of the notary to commit in the given matter. Cases like the present thus open a different inquiry from commitments which come from a court of record. In favor of the liberty of the citizen, it is the duty of the court or judge, upon similar applications, to examine the facts upon which the alleged jurisdiction rests, and to inquire if the commitment is “according to law” (sect. 36, supra), not only within the letter of the statutes, but within their meaning, and the intent of the law-making body.

In Ex parte McKee, supra, no question was made as to the nature of the proceeding, nor could the court see from the return any such facts as exhibited by the present return. The suit in which the deposition was taken was pending in Jackson County, and the deposition was taken in the city of St. Louis. The question raised by the present facts was not mooted, the illegality of the imprisonment being there alleged to consist in the irrelevancy of the questions put, in the omission of the notary to decide as to the relevancy, and in the want of the power of an officer engaged in taking a deposition to commit for a contempt of the kind there charged. The opinion of the court assumes, and has for its basis the assumption, that the proceeding was the taking of a deposition, and that the notary was engaged in good faith in the proceeding contemplated, not merely by the letter, but by the spirit of the statute. Ex parte Mumford, 57 Mo. 603, was not a case before the court, and, moreover, turned upon the question whether there was a “suit pending.” The facts that raise the present question did not then exist. The decision accordingly proceeds merely upon the well-established rule that a deposition may be taken at any time after suit brought, but pays no attention to the necessary interdependence between the power of the officer to commit and imprison, and the jurisdictional facts which the law intends shall exist as the basis of that power. The same observations apply to Ex parte Scruggs, decided by Judge BAKEWELL. But a notary, as a notary, has no power to commit for contempt; and contempt of court is a recognized offence, but there is no such thing known to the law as contempt of a notary-public.

It is only by reason of the exercise of a function in the manner and under the circumstances contemplated by the Legislature that there can here be contempt within the meaning of the law. As, if no suit were pending, the mere going through with certain formal steps described in the statutes in regard to depositions could not invest the notary with the necessary power, so if, when a suit is pending, the forms of the act are complied with, yet the proceeding is not that contemplated by the law, the jurisdiction does not attach. The proceeding cannot be made the taking of the deposition by calling it so. The question is, whether the substantial as well as the formal parts of the law are complied with. We must look at the intention existing in the minds of...