In re Rosenberg

• Decision Date: 20 June 1895
• Citation: 63 N.W. 1065,90 Wis. 581
• Parties: IN RE ROSENBERG.
• Court: Wisconsin Supreme Court

90 Wis. 581

63 N.W. 1065

IN RE ROSENBERG.

Supreme Court of Wisconsin.

June 20, 1895.

Application by Ben Rosenberg for a writ of habeas corpus. Denied.

On petition of Ben Rosenberg, an order was issued out of this court, directed to the sheriff of Jackson county, returnable on the 30th day of April, 1895, directing the said sheriff to show cause why a writ of habeas corpus should not issue to inquire into the legality of the custody wherein he held the petitioner. On the hearing of the motion it appeared, in effect, that the petitioner was held in custody by such sheriff, in the county jail of Jackson county, by virtue of an order of commitment made February 7, 1895, by the circuit court for Jackson county, whereby he was committed as for contempt. The order was made in a creditors' action, brought under section 3029 of the Revised Statutes, for the discovery of property belonging to judgment debtors. Certain creditors of the petitioner, Ben Rosenberg, and Isaac Rosenberg, as copartners, had obtained a judgment against them, on which an execution had been returned unsatisfied. An action under the statute had been commenced, and a receiver had been appointed. The petitioner had been brought before the circuit court, at the instance of the receiver, to make discovery of the property of the firm. The petitioner had been the active manager of the firm's business. After several partial and unsatisfactory oral examinations, and several continuances, the court made a further continuance, and at the same time made an oral direction, entered in the stenographer's minutes, that in the meantime the petitioner should “prepare a statement showing the amount of merchandise purchased by them [the firm] during the year 1894, the purchase price thereof, the persons from whom purchased, and the amount paid thereon, together with a full statement of the amount of goods sold to Aleck Rosenberg, the brother of said defendants, the price for which said goods were sold, the amount paid thereon, and a complete record of their transactions with said Aleck Rosenberg during the said year 1894,--and produce said statement, when so prepared, before said court on the 4th day of February, 1895, and personally appear before the court on that day, and verify the same under oath.” The judge at the same time suggested that the petitioner ought to account for at least $15,000 worth of goods more than had been accounted for, and intimated that consequences might follow a failure to comply with the direction. On the day appointed, the petitioner appeared before the court without the required statement, which he professed to be unable to make for want of the necessary information. He stated that, although he had a clerk and bookkeeper, and had kept books up to January 1, 1894, during the year 1894 he had kept no books, nor, so far as he knew, had his clerk. It appeared that a large business had been done by the firm, and large invoices of goods had been received by them. But a small part of the property traced to their possession or business was accounted for on oral examination. The petitioner protested that he could neither read nor write, and had no knowledge of what had become of the goods. The court found that it was within the petitioner's power to comply, substantially, with what was required of him, and committed him until he should comply.Spooner, Sanborn, Kerr & Spooner, for petitioner.

C. T. Bundy, for the sheriff.

NEWMAN, J. (after stating the facts).

On habeas corpus only jurisdictional questions are inquired into. In re Milburn, 59 Wis. 24, 17 N. W. 965;State v. Sloan, 65 Wis. 647, 27 N. W. 616;In re Graham, 74 Wis. 450, 43 N. W. 148;In re McDonald, 76 Wis. 366, 44 N. W. 1105;In re Frederich, 149 U. S. 70, 13 Sup. Ct. 793. There is no question that the court had jurisdiction of the cause of action and of the parties. If, then, it had power to make the order of commitment in any supposable circumstances which might arise in the progress of the cause, then the order is valid until reversed, however erroneous it may be in the particular circumstance. Cases cited above; Tallman v. McCarty, 11 Wis. 401;People v. Nevins, 1 Hill, 154.

The action was brought for the discovery of the goods of the debtor firm. The whole matter of enforcing the discovery was within the jurisdiction of the court. It was within its discretion to direct the manner in which the discovery should be made. It might require the petitioner to make discovery by the production of books and papers, by oral examination, or by written statement, or by all these modes, as should appear to the court necessary and most feasible and conducive to the end in view. All this relates to practice, not to power; to form, rather than to substance. The substance of the proceeding was to obtain discovery. Error in mere form, if it exists, does not touch jurisdiction. To the end that the discovery should be complete and effectual, the court had power to require the petitioner to use all the means within his power for acquiring the information necessary to enable him to give the discovery called for. 1 Pom. Eq. Jur. (2d Ed.) § 204; 1 Daniel Ch. Prac. (6th Ed.) 724. And the court had no right to be deceived by untruthful statements, nor to be satisfied by evasive or prevaricating answers. Prevarication by a witness has the same effect upon the administration of justice as a refusal to answer. To the same effect, it puts the witness in the position of standing out against the authority of the court, and thwarts the court in its effort and purpose of doing justice between the parties. It is contumacy. It is direct contempt of the authority of the court. Berkson v. People (Ill. Sup.) 39 N. E. 1079. Provision is made for the examination of the defendant in an action for a discovery under section 3029, Rev. St., by section 3 of rule 28 of the Rules of the Circuit Court, relating to “Creditors' Actions, Supplementary Proceedings, and Receivers.” It is provided that the defendant may be required to appear before a judge or court commissioner, to produce his books and papers, and to submit to such examination, on oath, as he shall direct, in relation to any matter which he may be legally required to disclose. Provision is also made, by section 4096, for the examination of a party otherwise than as a witness at the trial. This section has been held to be a substitute for the bill of discovery under the former practice. Frawley v. Cosgrove, 83 Wis. 441, 53 N. W. 689. Under this statute a party is made a witness at the instance of the adversary party. The examination is subject to the same rules which apply to the examination of other...