Larimore v. Bobb,
| Decision Date | 28 February 1893 |
| Citation | 21 S.W. 922,114 Mo. 446 |
| Parties | Larimore, Appellant, v. Bobb, et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
Stone & Slevin for appellant.
(1) The statute (Revised Statutes, 1889, sec. 8924) reposes a discretion in the circuit court. Haskell v Sullivan, 31 Mo. 435. And whether this discretion has been properly exercised will be reviewed by the appellate court. Haskell v. Sullivan, 31 Mo. 435; Whitsett v. Blumenthal, 63 Mo. 479; Hanel v. Freund, 17 Mo.App. 618; State v. Lewis, 9 Mo.App. 321. (2) Witness will not be punished for contempt, for failing to attend as a witness in a civil case, unless his fees have been paid or tendered. In re Hughbanks, 24 P. 75; 44 Kan. 105; Bonner v. People, 40 Ill.App. 628; Kinsey v. King, 6. Ire. (N. C.) 76. A witness residing at a greater distance than forty miles from place of trial must be tendered his mileage. Revised Statutes, 1889, sec. 8929; Hutchins v. State, 8 Mo. 288. And the return upon the subpoena must show that these fees have been tendered the witness. Revised Statutes, 1889, sec. 8938. (3) Subpoenas can be legally served only by the officers mentioned in the statute or by some disinterested person who would be a competent witness in the cause. Revised Statutes, 1889, sec 8937. An adverse party, though under our statute a competent witness, is not a disinterested person.
Robert E. Collins for respondents Philip M. Bobb and D. A. Jamison.
(1) When a plaintiff has been subpoenaed, refuses to attend as a witness or to testify to a deposition, in addition to being punished for contempt, his petition may be rejected. Revised Statutes, sec. 8925; Snyder v. Raab, 40 Mo. 166; Haskell v. Sullivan, 31 Mo. 435. (2) A necessary party to a suit is not entitled to witness fees or mileage. (3) Witnesses are only entitled to mileage for the actual number of miles necessarily traveled in order to be present as witnesses. Revised Statutes, sec. 5003. (4) A subpoena may be served by a party to the suit, although interested in the same. Bridge Co. v. Bowling, 53 Mo. 311. (5) A witness who appears and submits himself to examination waives any informality in the service of process. (6) An appellate court will not consider an objection raised for the first time in the appellate court unless the same was made and preserved in the bill of exceptions. (7) In applying to have a dismissal of a cause set aside, it is necessary to allege by affidavit that the party moving has a meritorious cause of action or defense. (8) A court will not set aside the dismissal of a cause where it appears that it is not a meritorious one. (9) Appellate courts will not examine the record to determine the weight of the evidence. If it appears from the record that the finding of the court below upon the facts is sustained by substantial evidence, although the weight of the evidence may be claimed to be to the contrary, the finding will be sustained. O'Rea v. Ferguson, 72 Mo. 225; Meyer v. McCabe, 73 Mo. 236. (10) While the action of the court below is subject to review, the appellate court will only consider erroneous views of the law taken by the lower court.
On the fifth of June, 1886, Marcus A. Wolf began an action against John H. Bobb, Philip M. Bobb and Dorsey A. Jamison, his curator, and others, in the circuit court of the city of St. Louis, for partition of certain real estate in said city. On the eighteenth of June, 1886, Newell G. Larimore was substituted in the action for Wolf, as plaintiff, and on the fifteenth of January, 1887, an amended petition was filed.
All the defendants except Philip M. Bobb, who was a minor, were served with process, either personally or by publication. T. J. Rowe, Esq., appeared as counsel for and filed the answer of defendant Lucy G. Taylor.
At the April term, 1887, an order of publication was taken as to defendant, Philip Bobb, the minor, which was made and proved, and on October 3, 1887, his answer was filed. Prior to the service of Philip Bobb, the defendant, Lucy G. Taylor, took the deposition of Larimore, the plaintiff. Two issues of fact were tendered by defendants' answer, namely, one was whether plaintiff was in possession of the real estate he sought to partition, and secondly, whether he was not holding the title he was asserting in secret trust for Mrs. Cora G. Taylor. Plaintiff Larimore's residence is in North Dakota. On the sixteenth of February, 1891, he was in the city of St. Louis and defendants, Philip M. Bobb and his guardian Jamison, served him with a notice to take his deposition in this case on February 28, 1891, and at the same time a subpoena was duly served on him to appear as a witness at the time and place named in the notice.
At the time mentioned, he appeared, was duly sworn and his examination commenced, when upon his request and upon his representation to the notary "that it would be impossible on account of pressing business engagements to remain longer during that afternoon," by and with his own consent and that of defendants, the taking of his deposition was adjourned until Wednesday, March 4, 1891, at one o'clock, P. M. On March fourth he failed to appear and the deposition was continued to March seventh, and he not again appearing the depositions were continued to the tenth of March, when they were discontinued and returned to the court in so far as they were taken.
On the twelfth of September, 1890, counsel for plaintiff and T. J. Rowe, Esq., who represented some of defendants, signed a stipulation continuing the cause until the supreme court should decide and send down its mandate in Jamison v. Bagot. The stipulation appeared to be for all defendants. On the twenty-first of October, 1891, Jamison and his ward, Philip M. Bobb, moved the court to strike out plaintiff's amended petition and render judgment for defendants because plaintiff had disregarded the process of law served upon him for taking of his evidence in this cause, had left the state and was in contempt of court.
Upon proof of foregoing facts, the court sustained the motion. On the tenth of March, 1891, plaintiff moved the court to set aside the dismissal and reinstate the cause, and filed his affidavit in support thereof, in which he states that he was called home by the illness of his wife; that he meant no disrespect to the court or notary; that he was ready and willing to give his deposition at any time. He further stated that he was frequently in St. Louis and intended to be there before the trial and would submit himself to examination if so desired.
Upon this showing Judge Valliant made a conditional order that if on or before May 25, 1891, a month from the hearing, plaintiff would appear before said notary and submit to an examination his said motion would be sustained, otherwise it would be overruled. Plaintiff did not appear and submit to such examination, nor did he ask for further time or make any excuse for not appearing, and on May 26, 1891, the court overruled his motion to reinstate and he has appealed from the action of the circuit court. He assigns as error that the circuit court abused its discretion.
I. By virtue of section 8920, the defendants were entitled to have plaintiff testify as a witness in their behalf and to conduct the examination themselves. His previous deposition taken when Philip Bobb had not been brought into court was not binding on said minor and was no excuse for not giving his deposition upon this notice.
The statute, section 8924, provides that "if a party, on being duly summoned, refuse to attend and testify, either in court or before any person authorized to take his deposition besides being punished himself as for a contempt, his petition, answer or demurrer may be rejected or a motion if made by...
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