State ex rel. Kramer v. Carroll

• Court: Missouri Court of Appeals
• Writing for the Court: This is an original proceeding by Max W. Kramer, relator, in which he seeks a writ of prohibition to prevent Honorable Michael J. Carroll; PER CURIAM; MATTHES, Acting P. J., ANDERSON, J., and CLEMENS
• Citation: State ex rel. Kramer v. Carroll, 309 S.W.2d 654 (Mo. App. 1958)
• Decision Date: 04 February 1958
• Docket Number: No. 29944,29944
• Parties: The STATE of Missouri at the Relation of Max W. KRAMER, Relator, v. Michael J. CARROLL, Judge of Division 2 of the Circuit Court of St. Louis County, Missouri, Sitting as Judge of Division 6 Thereof, Respondent.

Page 654

309 S.W.2d 654

The STATE of Missouri at the Relation of Max W. KRAMER, Relator, v. Michael J. CARROLL, Judge of Division 2 of the Circuit Court of St. Louis County, Missouri, Sitting as Judge of Division 6 Thereof, Respondent.

No. 29944.

St. Louis Court of Appeals, Missouri.

Feb. 4, 1958.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 1, 1958.

Jerome Kalishman, Joseph Chused, St. Louis, for relator.

Irl B. Baris, St. Louis, for respondent.

HOUSER, Commissioner.

This is an original proceeding by Max W. Kramer, relator, in which he seeks a writ of prohibition to prevent Honorable Michael J. Carroll, Judge of Division 2 of the Circuit Court of St. Louis County sitting as Judge of Division 6, from proceeding further in the case of Roberta Kramer, plaintiff, v. Max W. Kramer and Mae Kramer, defendants, Cause No. 210,148 now pending in that court, or in lieu thereof to prohibit the enforcement 'in any way whatsoever' of a subpoena duces tecum issued by order of that court commanding relator to appear before a notary public at a certain time and place 'then and there to testify, and the truth to speak * * *' in the aforesaid case and to bring with him and produce in evidence certain records. We issued our preliminary writ commanding respondent to make return and show cause why final judgment in prohibition should not be entered as prayed and directing him to take no action in the premises until the further order of this court. Respondent's return, relator's answer and respondent's reply to relator's answer were filed in due course.

The pertinent admitted facts are there: At the time of the filing of the petition for the writ of prohibition the above described action was pending, in which Roberta Kramer, an adult incapacitated woman, sought a declaratory judgment against her divorced parents establishing the parents' duties of support and maintenance and an order for periodic payments of support money. A notice to take depositions was served upon relator on June 25, 1957. On June 26 counsel for Roberta obtained an order of court for the issuance of a subpoena duces tecum as aforesaid. The records described in the subpoena were as follows:

'(1) All copies of your personal income tax returns, Federal and State, for the years 1947 through 1956, inclusive.

'(2) All records and documents relating to contributions and support expended by you for the benefit of Roberta Kramer.'

The subpoena was served upon relator on June 26. The taking of the depositions, set for July 2, was by agreement passed to July 10. Relator filed a motion to quash the subpoena duces tecum. That motion was heard and overruled by respondent on the morning of July 10. Thereafter Roberta's counsel filed a motion to reject relator's answer filed in Cause No. 210,148, under the provisions of Sec. 491.180 RSMo 1949, V.A.M.S., for contumacious refusal of relator to attend the depositions as required by the subpoena. That motion is pending and undisposed of in the circuit court.

The petition for writ of prohibition attacks the subpoena duces tecum as void upon its face, unreasonable and oppressive on the ground that it commands the production of evidence which is irrelevant and immaterial to the issues in Cause No. 210,148 and for the reason that the documentary evidence sought in item 2 of the subpoena duces tecum is not sufficiently designated or described, in that there is no limitation as to the period of time covered by the request, it does not specify the type of records and documents desired and is not restricted to such records and documents as are in relator's possession or under his control. Relator's prayer sought to prohibit respondent 'from proceeding further with the cause; or in lieu thereof, for a writ of prohibition prohibiting the enforcement of the aforesaid subpoena duces tecum in any way whatsoever, * * *.'

The case was argued and submitted upon the pleadings.

First for decision is respondent's contention that the preliminary writ should be quashed because the question raised is moot; that upon relator's failure to appear at the convening of the deposition the subpoena duces tecum became a fait accompli and that the propriety of requiring the production of the documents became moot; that the act sought to be prohibited is complete and that the writ will not issue when the act sought to be prohibited is already done; that prohibition cannot undo that which has taken place. A question is moot when the question presented for decision seeks a judgment upon some matter in which the rendition of a judgment could have no practical effect upon any then existing controversy. Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404. Our judgment in prohibition passing upon the validity of the subpoena duces tecum will have a direct bearing upon at least one phase of an existing controversy, namely, the motion of Roberta to reject and strike from the files relator's answer for failure to respond to the subpoena, which motion has not been disposed of but which is still pending in the circuit court. In this connection see State ex rel. Atchison, T. & S. F. R. Co. v. Trimble, 254 Mo. 542, 163 S.W. 860. The question is not moot.

Another preliminary point raised by respondent is that a permanent writ should be denied because this court should not undertake to interfere with or control the exercise of discretion by the circuit court in passing upon the aforesaid motion of Roberta to reject and strike. While it is true that under Sec. 491.180, supra, the striking of or refusing to strike a pleading for refusal of a party to testify is a matter resting within the discretion of the trial court, Graveman v. Huncker, 345 Mo. 1207, 139 S.W.2d 494, there would be no room for the exercise of that discretion if the trial court has no jurisdiction over the motion, and the latter question (jurisdiction or lack of it) is the question posed here.

Turning to the merits, relator in his brief raises several points in support of his contention that the preliminary writ should be made permanent.

Relator claims that the trial court should be prohibited from enforcing the subpoena duces tecum. He argues that the documentary evidence sought in item 2 of the subpoena duces tecum is not sufficiently designated or described. Item 2 commands relator to produce '* * * All records and documents relating to contributions and support expended by you for the benefit of Roberta Kramer.' Under the rulings in State ex rel. Burke v. Scott, 364 Mo. 420, 262 S.W.2d 614; State ex rel. Clemens v. Witthaus, 360 Mo. 274, 228 S.W.2d 4, and State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 8 A.L.R.2d 1124, item 2 of the subpoena duces tecum was unauthorized and invalid for the reason that its omnibus language is too general and all-inclusive. A subpoena duces tecum to produce records and documents at the taking of a deposition must designate and specify the records and documents sought with some reasonable degree of certainty and particularity. Item 2 contains no limitation as to the period of time involved and no specification, designation or identification of the type and kind of support records and documents desired. Respondent did not have jurisdiction to include in the subpoena duces tecum such a broad and sweeping command and does not have jurisdiction to enforce that part of the subpoena.

He also says that the documentary evidence sought in the subpoena is irrelevant and immaterial to the issues of this case. The documentary evidence thus sought, other than item 2, was relator's personal income tax returns from 1947 to 1956. The trial court is without jurisdiction to require the production of documentary evidence at the taking of depositions 'unless such evidence is first shown to be relevant and material to the issues in the pending cause.' State ex rel. Phelps v. McQueen, Mo.Sup., 296 S.W.2d 85, loc. cit. 89. Relator urges that evidence of financial condition is irrelevant and immaterial because that issue is removed from the case by relator's admissions. The financial condition and ability of the party sought to be charged is a fact pertinent to the inquiry in an action for support and maintenance. It is not an 'issue' in Cause No. 210,148, however, because it is an admitted fact in that proceeding. Roberta's petition alleged and relator specifically admitted in his answer 'that defendant father is a practicing attorney in the City of St. Louis, enjoying a substantial income from the practice of law and other financial interests, and is well able to provide the necessities of life for plaintiff, * * *.' Evidence is not necessary to prove an admitted fact. In this particular case respondent had no jurisdiction to command the production of the income tax returns.

Relator further claims that for several reasons the trial court should be prohibited from proceeding further with the cause.

Relator urges that the petition in Cause No. 210,148 does not and cannot state a claim for relief because there is no legal duty upon a parent to support an adult incapacitated child. Does a legal duty rest upon a father to support his adult unemancipated, unmarried and needy child who as a result of epilepsy is totally and permanently disabled from gainful employment, who from infancy has been either in hospitals or in the home of her parents and who has remained in the custody of her mother since the divorce of the parents? We hold that the father is under a legal duty to support his adult child in such case.

The obligation of a father to support his infant child, according to our Supreme Court, is 'imposed and conferred by the laws of nature,' and is enforced for the good of society upon grounds of public policy. In the Matter of Scarritt, 76 Mo. 565, loc. cit. 584, 43 Am.Rep. 768. Blackstone refers to the duty of parents to provide for the maintenance of their children as a 'principle of the natural law,' 'an obligation laid on them not only...