Miller v. Huffman
| Decision Date | 08 June 1963 |
| Docket Number | No. 43292,43292 |
| Citation | 382 P.2d 464,191 Kan. 570 |
| Parties | C. P. MILLER, Appellant, v. Lyle HUFFMAN, Defendant, and S. M. LaRue, d/b/a Economy Construction Co., Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. An order restraining or suppressing the taking of a deposition is tantamount to an injunction and is appealable.
2. The provisions of G.S.1949, 60-2821, give any party to an action the unqualified right to take the deposition of an adverse party when the adverse party is without the jurisdiction of the court in which the action is pending or cannot be reached by the process of the trial court. In this appeal the adverse party, although residing in an adjoining county, was within the jurisdiction of the trial court and could be reached by its process.
3. Under the authority of G.S.1949, 60-2803, a party may take the deposition of an adverse party, subject to the discretion of the trial court, when the adverse party resides without the county in which the action is pending.
4. The record on appeal from an order sustaining a motion to enjoin and suppress the taking of the deposition of an adverse party is examined and it is held that, under the facts, conditions, and circumstances set forth at length in the opinion, the trial court did not abuse its discretion in suppressing and restraining the taking of such deposition.
Tom Crossan, Independence, for appellant.
Paul L. Wilbert, Pittsburg, and Randall D. Palmer, E. Carter Botkin, and Alois R. Bieber, Pittsburg, on the briefs, for appellee, S. M. Larue, d/b/a Economy Const. Co. PARKER, Chief Justice.
This is an appeal from an order of the district court sustaining a motion to enjoin and suppress the taking of the deposition of an adverse party.
The plaintiff, C. P. Miller, filed an action in Montgomery County against the defendants, Lyle Huffman and S. M. LaRue, for negligent injury. The injury is alleged to have occurred while the defendants were engaged in the demolition of a building in the city of Coffeyville.
Defendant Huffman is a resident of Montgomery County and the owner of the building. Defendant LaRue, d/b/a Economy Construction Company, is a resident of Neosho County who was employed by Huffman to supervise the razing of the building.
Huffman did not respond to the service of summons and is in default. LaRue answered and the issues between plaintiff and defendant LaRue were joined by pleadings.
After joinder of issues Miller served notice to take LaRue's deposition. LaRue filed a motion, objecting to the taking of the deposition, wherein he stated he was only forty-nine years of age, in good health, would be present for trial in Montgomery County, and then asked the court to suppress the taking of the deposition and restrain the attorney for Miller from taking it.
After due notice and hearing, the court entered an order sustaining LaRue's motion in its entirety. Thereupon Miller perfected the instant appeal.
The first question raised is whether an order restraining or suppressing the taking of a deposition is appealable.
The court has entertained appeals of this type on numerous occasions. (See cases hereinafter cited dealing with depositions.) Although an appeal does not lie from an order granting, vacating, or refusing to vacate a mere restraining order (Cooley v. Shepherd, 170 Kan. 232, 225 P.2d 75; Smith v. City of Kansas City, 167 Kan. 684, 208 P.2d 233; Allen v. Glitten, 156 Kan. 550, 134 P.2d 631; City of Wichita v. Home Cab Co., 151 Kan. 679, 101 P.2d 219.), this court will examine the character and effect of the order, regardless of the term by which it is designated, for the purpose of determining whether the order is tantamount to an injunction.
An order which prevents the taking of a deposition is permanent insofar as the statutory right to take is concerned, although designated as suppressing, restraining, quashing, or enjoining.
This court may reverse, vacate, or modify an order which 'grants, refuses vacates or modifies an injunction' (G.S. 1949, 60-3302.) and an appeal will lie from an order granting or refusing a temporary injunction. (Laswell v. Seaton, 107 Kan. 439, 191 P. 266; Bumm v. Colvin, 181 Kan. 630, 637, 312 P.2d 827.)
The next question presented is whether LaRue (hereinafter referred to as appellee), residing in Neosho County, is outside the jurisdiction of the district court of Montgomery County under the provisions of G.S.1949, 60-2821. So far as here material such section provides:
'In any action now pending or hereafter instituted in any court of competent jurisdiction in this state, any party shall have the right to take the deposition of the adverse party, * * * when such adverse party, * * * is without the jurisdiction of the court or cannot be reached by the process of the trial court; * * *.' (Emphasis supplied.)
Appellant appears to contend he has the absolute right to take the deposition of the adverse party if he is outside the jurisdiction of the trial court even though he may be reached by the process of the court. It would be difficult to find a situation where a party was within the jurisdiction of the trial court and could not be reached by process of the court. LaRue must have been within and subject to the jurisdiction of the court or he would not have responded to the summons. On the other hand, if a party can be reached by the process of the trial, he is subject to its jurisdiction for all practical purposes. Perhaps too much stress should not be placed on the difference in effect of the two phrases used in the statute.
Appellant directs our attention to the constitution and statutes covering the jurisdiction of district courts.
Article III, Section 6 of our Constitution provides:
'The district courts shall have such jurisdiction in their respective districts as may be provided by law.'
The general jurisdiction of district courts is set out in G.S.1949, 20-301, which states in part:
'There shall be in each county organized for judicial purposes a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law), * * *.'
Additional jurisdiction is provided by specific statutes. See, e. g., G.S.1949, 60-2502, which reads:
'Where the action is rightly brought in any county, according to the provisions of article 5, a summons shall be issued to any other county against any one or more of the defendants, on the plaintiff's praecipe.'
The fact that a bona fide action was brought against co-defendant Huffman and service obtained in Montgomery County must be conceded.
Appellee LaRue was in the jurisdiction of the Montgomery County district court for the purpose of service of process (60-2502) and could be reached by subpoena. (G.S.1949, 60-2810.)
It must be understood that the right to take the deposition of an adverse party does not depend alone on the provisions of the Laws of 1909, Chapter 113, Section 1, now G.S.1949, 60-2821.
The right to take the deposition of an adverse party was recognized before this section (60-2821) was enacted in 1909. At first blush it appears difficult to determine the intent and purpose of the legislature in enacting 60-2821, particularly in view of the existing provisions of the statute to which we shall presently refer. Even so determination of its intent and purpose will aid in determining when the section is applicable.
The right to take the deposition of an adverse party was granted under the provisions of G.S.1949, 60-2803, which has been a part of the civil code since 1868. Those provisions read:
'Any party to a civil action or proceeding may compel any adverse party or person for whose benefit such action or proceeding is instituted, prosecuted or defended, at the trial or by deposition, to testify as a witness in the same manner and subject to the same rules as other witnesses.'
See, also, G.S.1949, 60-2819, which provides:
'The deposition of any witness may be used only in the following cases:
Under our decisions the statutory enactments just quoted were given a rather restricted construction when applied to adverse parties and the trial court was given almost unlimited discretion in restraining the taking of depositions. The first case to consider the matter made a very liberal approach. In the case of In re Abeles, 12 Kan. [2nd Ed.] *451, the court said:
'* * * That the witness whose testimony is sought is the adverse party does not affect the question, for, by section 321 [now G.S.1949, 60-2803.] of the Civil Code, either party can compel the adverse party 'at the trial, or by deposition, to testify as a witness, in the same manner, and subject to the same rules, as other witnesses.' By section 346 [now G.S.1949, 60-2819.] of the Code the deposition of a witness may be used when the witness is absent from the county at the time of trial, or when from age, infirmity, or imprisonment, the witness is unable to attend court, or is dead. Giving the right to use a deposition under the contingencies named gives the right to prepare for those contingencies. It cannot, of course, have been contemplated that the contingency must exist before the deposition can be taken; for in one of the cases at least the happening of the contingency would destroy the power to obtain the testimony. If the deposition of a witness can be used in case of his death, the party must have a right to take that deposition beforehand. So of the other contingencies named in the statute.
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