State ex rel. Lanning v. Lonsdale

• Decision Date: 03 February 1880
• Citation: 4 N.W. 390,48 Wis. 348
• Parties: THE STATE ex rel. LANNING and another v. LONSDALE
• Court: Wisconsin Supreme Court

4 N.W. 390

48 Wis. 348

THE STATE ex rel. LANNING and another v. LONSDALE

Supreme Court of Wisconsin

February 3, 1880

Argued January 10, 1880

APPEAL from the Circuit Court for Fond du Lac County.

This is a proceeding against the appellant, Lonsdale, as for a contempt, to enforce a civil remedy. The alleged contempt consisted in the refusal of Lonsdale to answer certain interrogatories propounded to him when giving his deposition as a witness before a court commissioner of Milwaukee county in an action pending in the circuit court for Fond du Lac county, in which the relators are plaintiffs and one Lewis E Reed is defendant.

That action is to recover damages for an alleged libel contained in a letter which it is charged the defendant wrote, and sent to some commercial agency in the city of Milwaukee, giving an unfavorable report of the financial standing and responsibility of the relators.

Lonsdale was the managing agent of the commercial agency of R. G. Dun & Co., at Milwaukee, and, in obedience to a subpoena duces tecum, appeared before the commissioner to give his deposition in the action as a witness. The subpoena required him, among other things, to produce all letters and correspondence in his possession or under his control as manager of such agency, received at or by the agency from Reed, the defendant in the libel suit, relating to the financial standing or credit of the relators. On being interrogated in relation thereto, Lonsdale refused to disclose whether the agency had received any such communications from Reed, or whether Reed was one of the correspondents of the agency, and also refused, when requested so to do, to produce any correspondence or documents called for by the subpoena. The ground assigned for such refusals was, that his answers to the questions propounded would have a tendency to accuse himself of libel which is a misdemeanor, or to expose him to a penalty.

The commissioner thereupon reported the above facts to the circuit court for Fond du Lac county. On such report, and an affidavit of one of the attorneys for the relators showing the facts above stated, the circuit court granted an order that Lonsdale show cause, on a day therein named, why he should not be adjudged guilty of a contempt by reason of the premises. Lonsdale appeared pursuant to the order, and admitted that the statements of fact in such report and affidavit were true. The court thereupon made the following order:

"It is now here ordered and adjudged that said John E. Lonsdale has been and is guilty of the misconduct alleged against him in the proceedings and premises, and is guilty of contempt therein, and that the said misconduct was calculated to and did actually impede and prejudice the said plaintiffs, Azariah and Alpheus Lanning, in their rights and remedies in their said action against said Lewis E. Reed, defendant therein, and that the said Azariah and Alpheus Lanning have, by reason of said misconduct, been put to a great amount of costs and expenses, to wit, the sum of $ 221.17. It is further ordered and adjudged that instead of a fine the said John E. Lonsdale pay to the plaintiffs the costs and expenses in such proceedings, amounting to the said sum of $ 221.17, and that the payment thereof be and the same is hereby imposed on said John E. Lonsdale for his misconduct.

"It is further ordered that said John E. Lonsdale be, and he is hereby, directed to stand committed to the common jail of the county of Fond du Lac, there to remain, charged with said contempt, until he shall, on due notice to said plaintiffs' attorney, proceed and testify in said action (if pending), as a witness before said commissioner, this court, or some officer competent and authorized to take said testimony, and shall answer said questions, and comply with the said directions hereinbefore set forth, and until he shall fully pay the said sum of $ 221.17 so imposed, costs and expenses of the proceedings, unless he shall sooner be discharged by the court; and that a warrant of commitment issue to carry this judgment into effect."

From the above order, Lonsdale appealed.

Reversed.

For the appellant, there were separate briefs by David S. Ordway and H. M. Finch in behalf of Finches, Lynde & Miller; and there was also oral argument by Mr. Lynde and Mr. Ordway. The argument of Mr. Ordway's brief is substantially as follows:

1. Under secs. 2434 and 4066, R. S., only the court commissioner before whom the appellant's deposition was taken had authority or jurisdiction to commit for the supposed contempt. Prior to the time when the present revision took effect, no such authority had been given to court commissioners; but that revision was intended to "give authority to officers taking depositions to punish for contempt as in New York." Stuart v. Allen, 45 Wis. 158. In New York, an order similar to that here in question was reversed on the ground that the officer before whom the witness was testifying should have committed, and not the court. People ex rel. Valiente v. Dyckman, 24 How Pr., 223. True, the language of the statute is, that the officer "may by warrant commit;" but under this language he is bound to commit wherever the public or an individual has a claim de jure to have the power exercised. Newburgh Turnp. Co. v. Miller, 5 Johns. Ch., 113; Kane v. Footh, 70 Ill., 587; Market Nat. Bk. v. Hogan, 21 Wis. 318; Cutler v. Howard, 9 id., 312. True, also, the circuit court has an unquestionable power of review; but under this it merely affirms or vacates the commissioner's order of commitment. 2. There was no authority either in the court or the commissioner to commit the appellant to the jail of Fond du Lac county. Residing in Milwaukee county, more than thirty miles from the place of trial, he could not have been compelled to go to Fond du Lac county to testify, if he had offered to give his deposition. When he was examined before the commissioner in Milwaukee county, if the commissioner (whose proper office it was to punish him for any contempt) had committed him to the jail of that county, it is doubtful whether the circuit court of the same county, rather than that of Fond du Lac county, would not have had the power of review. But if that power belonged to the latter court, still it acquired thereby no right to make any order of commitment which the commissioner himself could not have made. Subd. 5, sec. 3477, R. S., in terms empowers the court to punish by fine and imprisonment "all persons summoned as witnesses," for refusing to obey the summons, or to be sworn, "or to answer as such witnesses;" but it is submitted that this refers only to witnesses who are within the jurisdiction of the court and are summoned before the court. In State v. Brophy, 38 Wis. 425, the question which county the sheriff could be imprisoned in was not raised. This is a quasi criminal proceeding; if any crime has been committed, it was committed in the county of Milwaukee; if any person has been treated with contempt, it is the commissioner; and if the proceeding were criminal in form under sec. 2565, R. S., only the commissioner would have the right to determine in the first instance whether the refusal was a contempt of his authority. In re Eldred, 46 Wis. 530. 3. The appellant had a right to decline answering the questions which he did refuse to answer. A witness cannot be required, in this state, "to give any answer which shall have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture." The appellant had testified that the reports made from their correspondents to the agency were furnished by them to their subscribers. It is a libel to publish falsely that a man is insolvent and unable to pay his debts. 2 Addison on Torts, 928-9; Cox v. Lee, L. R., 4 Exch., 284; Sunderlin v. Bradstreet, 46 N.Y. 188; Taylor v. Church, 8 id., 452. And, in general, all who are in any manner instrumental in making the defamatory publication or procuring it to be made, are jointly and severally responsible therefor. Cooley on Torts, 194; 3 Greenl. Ev., § 169; Robinson v. Jones, 9 Cent. L. J., 147; Williamson v. Freer, L. R., 9 C. P., 393-5; Beardsley v. Tappan, 5 Blatchf., 498. It is plain, therefore, that an answer to the questions put to the respondent might have exposed him to a criminal prosecution for libel under sec. 15, ch. 172, R. S. 1858. The constitution, indeed, provides that "in all criminal prosecutions for libel the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact." Art. I, sec. 3. But the court cannot in this proceeding determine whether the respondent, if subjected to a criminal prosecution, would be able to make out a defense to the satisfaction of the jury. True, if it affirmatively appears that the statute of limitations has run upon the offense, or that there is full statutory protection of the witness against prosecution, the privilege cannot be claimed; but that rule has no application here. And, "unless the court can see that the witness will not be criminated, the privilege will be recognized and protected." Coburn v. Odell, 10 Foster, 555; Janvrin v. Scammon, 9 id., 290; People v. Mather, 4 Wend., 254-7. Some courts hold that it is for the witness to state on his oath that he believes that an answer to the question will tend to criminate him, and that the statement is conclusive (Fisher v. Ronalds, 16 Eng. L. & E., 418, and note 1; Osborne v. The London Dock Co., 29 id., 382; 74 E. C. L., 762); while other courts declare that it is the province of the court to judge. See Warner v....