In re The Petition of C. Wood Davis

• Decision Date: 11 February 1888
• Citation: 16 P. 790,38 Kan. 408
• Parties: In the matter of the Petition of C. WOOD DAVIS, for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

16 P. 790

38 Kan. 408

In the matter of the Petition of C. WOOD DAVIS, for a Writ of Habeas Corpus

Supreme Court of Kansas

February 11, 1888

Appeal from Sedgwick District Court.

THIS was an application by C. Wood Davis for a writ of habeas corpus, before the judge of the district court of Sedgwick county. In his petition he stated that--

"Your petitioner, C. Wood Davis, is unlawfully imprisoned detained, confined and restrained of his liberty by John Fisher, Esq., sheriff of Sedgwick county, Kansas, at Wichita in the county of Sedgwick, state of Kansas; that said imprisonment, detention, confinement and restraint are illegal, in this, to wit, that the petitioner heretofore brought four suits against the St. Louis & San Francisco Railway Company, and the same are all at issue and pending in the United States circuit court within and for the district of Kansas, and are assigned for trial at the coming November term of said court; that in said causes so pending the defendant took the deposition of your petitioner at Pittsburg, Kansas, one week ago, to wit, October 31, 1885 that on November 4, 1885, at 4 o'clock P. M., the attorney of your petitioner received a telegram in Fort Scott, Kansas, of which a copy is hereto attached, marked 'Exhibit A,' and made a part hereof; that your petitioner received no other notice, nor did any of his attorneys receive any other notice, except that petitioner received a so-called subpena on November 4, 1885. A copy of said so-called subpena is hereto attached, marked 'Exhibit B,' and made a part hereof; that afterward about 11 o'clock A. M. of said November 7, 1885, an attachment was issued by one A. T. Owen, directed to John Fisher, sheriff of said county; said Owen was a notary public, duly commissioned under and by virtue of the laws of the state of Kansas.

"Under said writ of attachment the said sheriff attached the petitioner and brought him into the presence of the said Owen. A copy of the said writ, with all indorsements, is hereto attached, marked 'Exhibit C' and made a part hereof. At this point of time the petitioner served upon the defendant's attorney a notice, of which 'Exhibit A' hereto attached and made a part hereof is a true copy. Since which time said defendant has served notice upon your petitioner that it will take your petitioner's deposition at Springfield, Mo., on November 11, 1885, together with that of other witnesses. Thereupon the defendant caused to be served upon your petitioner a so-called subpena in the presence of the notary, the same being signed and sealed by said notary. Said subpena is hereto attached, marked 'E,' and made a part hereof. Thereupon said notary at the request of the attorney of said defendant, ordered the petitioner to stand up and be sworn, and your petitioner refused. Your petitioner objected to the jurisdiction of said notary. Thereupon said notary issued a writ of commitment to the sheriff of said county, directing him to commit your petitioner to the common jail of said county, and to keep him there confined. A copy of said writ is hereto attached, marked 'Exhibit F,' and made a part hereof. Under said writ the said sheriff of Sedgwick county, Kansas, then took possession of the body of your petitioner and has him now in custody.

"Your petitioner says that such custody and confinement are unlawful by the sheriff of said county, and is furthered against your petitioner oppressively by said defendant, not for the purpose of obtaining a deposition that said defendant intends to offer in evidence on its own behalf, but for the purpose of fishing out the plaintiff's evidence.

"Wherefore, your petitioner prays that a writ of habeas corpus may be granted, directed to the said John Fisher, Esq., commanding him to have the body of your petitioner before your honor at a time and place therein to be specified, to do and receive what shall then and there be considered by your honor concerning him, together with the time and cause of his detention and said writ, and that he may be restored to his liberty."

A writ having been duly issued, John Fisher, the sheriff of Sedgwick county, appeared in court with the body of Davis; and thereupon the following proceedings ensued, as shown by the bill of exceptions:

"W. H. Phelps, attorney, appeared for said John Fisher and for the St. Louis & San Francisco Railway Company, and E. F. Ware appeared as attorney for and on behalf of said C. Wood Davis. Thereupon the parties appeared and announced themselves ready for trial. It was admitted in open court, on behalf of said Fisher and said railway company, that the allegations set up in the petition are true. It was admitted by said E. F. Ware, for and on behalf of said Davis, that said Davis and Ware came to Wichita, Kansas, intending to contest the right of said railway company to take said Davis's deposition, but ready and willing to appear and proceed with the taking of J. R. Wentworth's deposition; and it is further admitted that said Davis lived and resided more than one hundred miles from Topeka, Kansas, the place where said cases in the United States court were triable. The foregoing was all the evidence adduced in the trial."

On November 7, 1885, the court refused to discharge the petitioner, and dismissed his petition. Davis excepted, and brings the case here for review.

Judgment reversed, and cause remanded.

Ware, Biddle & Cory, for petitioners:

The petitioner claims that the petition in error should be sustained in accordance with Ex parte Fisk, 113 U.S. 713. We concede that one party has a right to take the testimony of another party, when a deposition is needed for use, or as a precaution against death or absence; but one party has no right to fish the other party. The case of In re Abeles, 12 Kan. 451, does not conflict with this view; that was a case of business, this was a case of...