Puterbaugh v. Smith

• Decision Date: 21 January 1890
• Citation: 23 N.E. 428,131 Ill. 199
• Parties: PUTERBAUGH v. SMITH et al.
• Court: Illinois Supreme Court

131 Ill. 199

23 N.E. 428

PUTERBAUGH

v.SMITH et al.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from circuit court, Stephenson county.

Trespass for false imprisonment, brought by David Puterbaugh against Charles B. Smith, George F. Bucher, Daniel H. Snyder, and Ed. S. Waterbury. Defendants pleaded justification, by virtue of a proceeding instituted to punish plaintiff for refusing to obey a subpoena issued by a notary public. Defendants obtained judgment. Plaintiff appeals.Horatio C. Burchard

, for appellant.

SCHOLFIELD, J.

By the act approved May 31, 1879, amending section 36, c. 51, Rev. St. 1874, entitled ‘Evidence and Depositions,’ notaries public, and other officers therein named, who may at any time be required to take depositions in any cause pending in any court of law or equity in this state, or by virtue of any commission issued out of any court of record in any other state, are empowered to issue subpoenas to compel the attendance of witnesses; and if any witness shall willfully neglect or refuse to obey such subpoena, etc., the officer issuing the same is required to at once report in writing the facts of such willful refusal or neglect, and file the same with the clerk of the circuit court of the county; and the section then proceeds thus: ‘And thereupon attachment shall issue out of said court against such offending witness, returnable forthwith before the circuit court of such county if in term-time, or before any judge of said court if in vacation, who shall hear and determine the matter in a summary way; and, it appearing to the court that the neglect or refusal of such witness to appear or testify, or to subscribe such deposition as aforesaid, is willful, and without lawful excuse, the court shall punish such witness by fine and imprisonment in the county jail, or by fine or imprisonment in the county jail, as the nature of the case may require, as is now, or as may hereafter be, lawful for the court to do in cases of contempt of court. Pub. Laws 1879, p. 162.’ Rev. St. (Ed. 1889) c. 51, § 36.

Appellant was subpoenaed to attend before a notary public, and give his deposition in a case pending before a court in the state of Kansas; and he was imprisoned by the order of the judge of the circuit court of the circuit in which the deposition was attempted to be taken, made in vacation, on summary process, without the benefit of trial by jury. The pleadings present the question whether so much of the statute as assumes to authorize this is within the prohibition of section 9, art. 2, of our constitution, which guaranties that in all criminal prosecutions the accused shall have a trial by an impartial jury of the county or district in which the offense is alleged to have been committed; and the case is therefore brought directly to this court from the trial court.

We may and do concede that the mere enforcing of the authority of the court, during the progress of trials, for the speedy, orderly, and impartial administration of justice between litigants, and the enforcing of the final judgment and orders of the court after the trial according to the principles and precedents of the common law, are not within the contemplation of this provision of the constitution. But proceedings by attachment to enforce the authority of a jurisdiction different from that of the court enforcing it are unknown to the common law. Thus, Blackstone says: ‘The contempts that are thus [summarily] punished are either direct, which openly insult or resist the powers of the courts, or the powers of the judges who preside there, or else consequential, which, without such gross insolence or direct opposition, plainly tend to create a...