State ex rel. Evans v. Broaddus

• Decision Date: 02 July 1912
• Parties: THE STATE ex rel. ARCHIBALD M. EVANS v. ELBRIDGE J. BROADDUS et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

149 S.W. 473

245 Mo. 123

THE STATE ex rel. ARCHIBALD M. EVANS v. ELBRIDGE J. BROADDUS et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

July 2, 1912

Judgment of Court of Appeals quashed.

Brown & Eastin for relator.

(1) The respondents were without authority to interrupt by mandamus the right of relator to have the cause of his detention inquired into by habeas corpus. The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. Ex parte Watkins, 28 U.S. 193; People v. Liscomb, 60 N.Y. 559; In re Dill, 32 Kan. 668. The writ of habeas corpus is an immediate remedy for every illegal imprisonment. Comm. v Brower, 9 Kulp. (Pa.) 317; Comm. v. Lecky, 1 Watts, 67; People v. Wells, 68 N.Y.S. 58; 2 Story (5 Ed.), Sec. 1339. The writ of habeas corpus is a high prerogative writ given by the common law and of authority paramount to all other writs. By the production of the prisoner on a writ of habeas corpus the court acquires absolute jurisdiction of the person and the original cause of commitment is suspended until the cause is disposed of. The custody is not on the original warrant, but is under the authority of the writ of habeas corpus. Haley's Case, 1 Mod. 195; Tazacharly v. Baldo, 1 Salk. 352; Matson v. Swanson, 131 Ill. 255; State v Sparks, 27 Tex. 705; Rex v. Bethel, 5 Mod. 22; Barth v. Clise, 12 Wall. (U.S.) 401; In re Kaine, 14 How. (U.S.) 103; Bacon's Abridgment Habeas Corpus, B., 13; Hurd on Habeas Corpus (2 Ed.) 324; Matson v. Swanson, 131 Ill. 255. In the present case the authority of the sheriff for arresting Evans was the commitment of the notary. The issuance of the writ of habeas corpus -- whether this be considered to have been done on June 12 or on June 24 -- supplanted the commitment, and thereafter the sheriff held his prisoner under the direction of the court by virtue of the habeas corpus proceeding. The commitment was so effectually nullified while this proceeding was pending that, had the sheriff attempted to hold or confine the prisoner without an order from the court, his act would have been false imprisonment. Ex parte Jilz, 64 Mo. 210; State ex rel. v. Dobson, 135 Mo. 1. (2) The commitment issued by the notary public was void. The notary adjourned the taking of the testimony before issuing the writ. The adjournment closed the authority of the notary under the notice, and all proceedings subsequent to that order were void. In re Green, 86 Mo.App. 216, 126 Mo.App. 317. (3) The evidence called for by the questions propounded to relator was incompetent and immaterial, and as relator is an attorney at law and the representative of the defendant in the proceeding, the information, even if competent, was privileged when objected to by his principal and client. The testimony could not have been received at the trial of the cause. It was foreign to the subject-matter of the suit, and the questions were evidently asked for a purpose not contemplated by the litigation. In re Shull, 221 Mo. 623; Ex parte Livingstone, 12 Mo.App. 80; Ex parte Krieger, 7 Mo.App. 367; Matthews v. Railroad, 142 Mo. 669; Tyson v. Loan Assn., 156 Mo. 588.

Charles C. Crow and John S. Boyer for respondents.

(1) The Kansas City Court of Appeals has power to issue writs of mandamus. Sec. 12, Art. 6, Constitution. (2) This court has no power to review a decision of the Court of Appeals in a case of which it has jurisdiction, unless the case be certified. The rule has become firmly established in this State. State ex rel v. Smith, 173 Mo. 398, 176 Mo. 90, 188 Mo. 181; State ex rel. v. Broaddus, 207 Mo. 124. The writ of certiorari will not issue from any court, under the common law, unless the court to which the writ is issued is assuming to act without jurisdiction, or acting in excess of its jurisdiction; and in no case can judicial errors be reviewed by means of this writ, and even though there be judicial error in this case (which we most emphatically deny), the rule applies. Cases cited, supra. In this case the alternative writ of mandamus, return of sheriff, intervening petition of Evans, and reply of relator is the record proper. There was a commissioner appointed to take testimony, and upon the return of the commissioner so appointed the judgment was entered upon the facts found by the commissioner. The only record in this case that can be read by this court, even if it has jurisdiction, is the alternative writ, return of sheriff, intervening petition and denial by relator, which made an issue of fact, into which this court certainly will not inquire. State ex rel. v. Wells, 210 Mo. 621; State ex rel. v. Smith, 173 Mo. 414. (3) The writ of habeas corpus is not so sacred but that it will be denied where the petitioner does not make the proper showing to obtain the writ. This is a writ of right, but not a writ of course. State ex rel. v. Dobson, 135 Mo. 1. (4) In this case the evidence called for was relevant, competent and material, for the reason that in any case parties have the right to show on the trial that defendant or plaintiff is concealing the names of or that they are failing to call persons who know the facts in issue; and a party has the right to prove that plaintiff or defendant has obtained the names of persons who know the facts and such testimony is not hearsay. Devoy v. Transit Co., 192 Mo. 220; Greenleaf on Evidence (15 Ed.), Secs. 100-101; Miller v. Crigler, 83 Mo.App. 400; Courtney v. Blackwell, 150 Mo. 245, Syl. 8; 6 Ency. of Ev. 443. (5) It is the duty of the notary to require an answer to questions where privilege is not claimed; the question of the materiality or competency is for the notary, and not the witness or his instructor. Ex parte McGee, 18 Mo. 599; Ex parte Gfeller, 178 Mo. 248, Syl. 9; Ex parte Mumford, 57 Mo. 606; Dustin v. Ferrelly, 81 Mo.App. 385. The notary acted in a judicial capacity in requiring Evans to answer questions, and it was the duty of the witness to obey the officer instead of persons interested in concealing the truth. Swink v. Anthony, 96 Mo.App. 424; Gharst v. Transit Co., 115 Mo.App. 408; Larrymore v. Bobb, 114 Mo. 453.

OPINION

In Banc

Certiorari.

LAMM J.

-- Original proceeding. Certiorari to quash a record. Respondents, our brethren of the Kansas City Court of Appeals, file return setting forth all the pleas, proceedings, briefs and entries in a certain mandamus suit, and this cause is submitted on respondents' motion to quash the writ. Marshaling the facts, they follow, viz.:

In April, 1911, one Bressman, adjudged of unsound mind, brought suit in the Buchanan Circuit Court through Gibson, his guardian, against the St. Joseph Railway, Light, Heat and Power Company, for damages for alleged injuries received while a passenger on one of said railway company's cars. Presently Bressman gave notice, and on June 10, 1911, proceeded, to take the deposition of one Evans (relator in the instant case) before Miss Apple, a notary public. Therein Mr. Brown represented defendant and Mr. Crow, plaintiff. Evans had been claim agent for defendant for several months and had done work in investigating the Bressman suit. He testified that the alleged time of the accident was several years ago; that he had looked for a report of it and had failed to find any; that he did not know the names of the conductor and motorman, had been given no names by the railway company and knew of no effort to find the names of the motorman and conductor; that if a report had been made the company's claim department would be the people most likely to know their names; and that he had made no inquiry in that regard from street car men.

From this point on the record may as well tell its own story, viz.:

"Q. Have you learned and do you know the name of any person who was on the car as passenger at that time? A. No, sir. Q. Is there any paper on file in your office showing names of any persons on the car at that time? A. Not that I know of. Q. Have you looked recently? A. I looked for the report. Q. Did you look for any other paper that would give names of persons on the car? A. No, sir. Q. Have you looked recently? A. No sir. Q. Who did you find knew about this accident, from your investigation? . . . Q. I will ask if you found any person who was on the car or saw this Mr. Bressman injured? . . . A. No, sir; I do not. Q. Have you talked with anybody or learned the name of any person who was on the car? . . . Q. What do you know? A. Only what I heard. Q. From what -- from the result of your investigation and from what you have learned by your investigation, do you know the name of any person that claims to have been on the car at the time of the injury or saw Mr. Bressman injured?

"Mr. Brown: You needn't tell what anybody claims to know, if you got it by making investigation; that is, if someone told you, you can decline to answer on the ground that all you know is what was told you, and decline to answer.

"Q. Do you decline to answer question? A. Yes, sir. Q. Why do you decline? A. Because it is only hearsay. Q. Is that your only reason for answering? A. Yes, sir.

"Mr. Crow: We will ask that he be compelled to answer questions.

"Mr. Brown: He will decline to answer hearsay, what someone has told him; he will decline to answer.

"Q. You refuse to answer the question as to the names of the persons you have discovered who say they were on the car or saw the injury to Mr. Brassman do you? A. Decline to give the names, do you mean? Q. Yes, sir; of the people who you learned from your investigation claimed they were on the car or saw the accident? A. Because I wasn't there and don't know whether they were there or not.

"Mr Crow: We ask the notary to instruct him to...