Magdanz v. District Court in and for Woodbury County

• Decision Date: 27 October 1936
• Docket Number: 43690.
• Citation: 269 N.W. 498,222 Iowa 456
• Parties: MAGDANZ et al. v. DISTRICT COURT IN AND FOR WOODBURY COUNTY et al.
• Court: Iowa Supreme Court

269 N.W. 498

222 Iowa 456

MAGDANZ et al. v. DISTRICT COURT IN AND FOR WOODBURY COUNTY et al.

No. 43690.

Supreme Court of Iowa.

October 27, 1936

Certiorari to District Court, Woodbury County; F. H. Rice, Judge.

Proceedings in certiorari to review action of respondent court in granting request contained in so-called letters rogatory that issued out of a court of a foreign state.

Writ sustained.

Kindig, Faville & Mathews, of Sioux City, for petitioners.

Henderson, Hatfield & Wadden, of Sioux City, and Frederick M Deutsch, of Norfolk, Neb., for respondents.

RICHARDS, Justice.

On June 8, 1936, a document captioned " Letters Rogatory" was filed in the office of the clerk of respondent court, same having originated in the district court of Pierce county, Neb. In substance it was a request by the Nebraska court that the respondent court cause the petitioners herein and others to appear before respondent court at a time and place to be fixed, and that at such time and place petitioners and others named be compelled by respondent court to make answers on oath to oral interrogatories relative to issues in an action pending in the Nebraska court, in which Atlas Corporation was plaintiff and petitioners and others were defendants. The document also requested that petitioners and the others named be compelled to bring with them all books, records, and data concerning a long series of transactions between the defendants in the action, and that all such books, records, and data, after being produced, be marked as plaintiffs' exhibits and all returned with the deposition, so to be taken, to the Nebraska court. On June 8, 1936, respondent court entered an order that the request of said " letters rogatory" be allowed and that the taking of said depositions commence on June 15, 1936, before F. H. Rice, a judge of said court, and that petitioners herein produce the books, records, and data above mentioned and that subpœ na issue accordingly. A subpœ na duces tecum was served on petitioners and others. On June 15, 1936, petitioners appeared before respondent court and filed motion to set aside the order of June 8 and to quash the subpœ na. On June 27, this motion was overruled following a hearing thereon in which evidence pertaining thereto was introduced. Thereupon petitioners objecting to examination, especially examination on oral interrogatories and not upon written interrogatories, and refusing to be so examined, the court ordered petitioner Magdanz committed to jail until he should see fit to obey the order of the court.

In stating their position petitioners concede that anciently there arose in the civil law a practice of procuring the testimony of witnesses who were in foreign countries through the medium of letters rogatory. Petitioners concede also that instances of use of letters rogatory by courts of our own country, where there were no statutory provisions for taking depositions and under circumstances that brought such letters within the well-defined practice that pertained to letters rogatory may be found. This much conceded, petitioners then vigorously urge that in the instant case the Nebraska court lacked authority to issue, and was prohibited by the Nebraska statutes from issuing the document filed in respondent court on June 8, 1936, and that the document lacked the essentials of letters rogatory, and was wholly ineffective as such. The facts being all before the respondent court, petitioners say that that court acted in excess of its authority and jurisdiction in founding its proceedings upon and in acting upon the so designated but futile letters rogatory, and that its orders and rulings should be annulled for that reason. Such is the question presented on this writ.

One weighing petitioners' proposition should first ascertain what are the essentials, not of form, but of substance of letters rogatory, and what are the essential things in the practice of their use. A definition is found in Anderson's Dictionary of Law, 1893 Edition:

" Letters Rogatory. A request by one court of another court in an independent jurisdiction, that a witness be examined upon interrogatories sent with the request."

A note is appended to this definition that " coming from the court of a foreign country, the witness may be compelled to appear and depose in the circuit court to which the letters are sent. (Citing authorities.)" In Bouv.Law Dict.(Rawle's 3d Rev.) p. 1935, Baldwin's Edition 1934, is found a definition, the material portions of which are the following:

" Letters Rogatory. An instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause depending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. * * * Where the government of a foreign country, in which witnesses purposed to be examined reside, refuses to allow commissioners to administer oaths to such witnesses, or to allow the commission to be executed unless it is done by some magistrate or judicial officer there, according to the laws of that country, letter rogatory must issue.

These letters are directed to any judge or tribunal having jurisdiction of civil causes in the foreign country, recite the pendency of the suit in court, and state that there are material witnesses residing there, whose names are given, without whose testimony justice cannot be done between the parties, and then request the said judge or tribunal to cause the witnesses to come before them and answer to the interrogatories annexed to the letters rogatory, to cause their depositions to be committed to writing and returned with the letters rogatory; 1 Greenl.Ev. § 320. In letters rogatory there is always an offer, on the part of the court whence they issued, to render a mutual service to the court to which they may be directed, whenever required. The practice of such letters is derived from the civil law, by which these letters are sometimes called letters requisitory. A special application must be made to court to obtain an order for letters rogatory, and it will be granted in the first instance without issuing a commission upon satisfactory proof that the authorities abroad will not allow the testimony to be taken in any other manner; 1 Hoffman, Ch.Pr. 482; 2 Dan.Ch.Pr. 3d Am.Ed. 953.

Though formerly used in England in the courts of common law; 1 Rolle, Abr. 530, pl. 13; they have been superseded by commissions of dedimus potestatem, which are considered to be but a feeble substitute. Dunl.Adm.Pr. 223, n.; Hall, Adm.Pr. 37. The Courts of admiralty use these letters; and they are recognized by the law of nations. See Foelix, Droit Inter. liv. 2, t. 4, p. 300, Denisart; Dunlap, Adm. Pr. 221; Bened.Adm. sec. 533; 1 Hoffm.Ch. 482."

The foregoing definitions appear to be supported by the great weight of the authorities. Letters rogatory are part of the early growth of the law, in a period when the paucity of legislation providing methods of practice and procedure created a necessity that the courts in large measure work out, and by adopting establish as lawful, ways and means of functioning. The authorities indicate that such necessity was the warrant for the practice of issuing letters rogatory, and the element of necessity seems not to have been abandoned, but still is recognized as a thing essential to their issuance. Examples of such necessity are suggested in the definitions above, for instance, a situation arising where the government of a foreign country, in which the witness may be, refuses to allow commissioners to administer oaths to the witnesses, or to allow the commission to be executed unless it be by some magistrate or judicial officer of that country. Instances of such necessity have arisen where the laws of the state, in which the witness may be, fail to clothe the commissioner with power to command the presence of the witness. Thus in Ex parte Taylor, 110 Tex. 331, 220 S.W. 74, 9 A.L.R. 963, and in State v. Bourne, 21 Or. 218, 27 P. 1048, proceedings had been initiated in one state for the taking of testimony of witnesses in another. In each of these cases, the witness refusing to appear, and there appearing to have been no law authorizing the commissioner by whom the deposition was to be taken to enforce the attendance of the witness, a necessity arose bringing the situation within the recognized practice in the use of the letters rogatory addressed to a court that could compel attendance.

The writers of the foregoing definitions apparently intended to mention, as another element or part of the practice in the...