State ex rel. Ozark Cooperage & Lumber Co. v. Wurdeman

• Decision Date: 05 July 1913
• Citation: 158 S.W. 436
• Parties: STATE ex rel. OZARK COOPERAGE & LUMBER CO. v. WURDEMAN, Circuit Judge.
• Court: Missouri Court of Appeals

158 S.W. 436

STATE ex rel. OZARK COOPERAGE & LUMBER CO. v. WURDEMAN, Circuit Judge.

St. Louis Court of Appeals. Missouri.

July 5, 1913.

1. WITNESSES (§ 16) — DOCUMENTARY EVIDENCE — COMPELLING PRODUCTION — APPLICATION FOR SUBPŒNA DUCES TECUM.

An application for a subpœna duces tecum to require a witness not a party to the action to produce books and documents must state facts enabling the court to determine that such books and documents are material and relevant, and hence a petition merely alleging that such books and documents constituted material evidence necessary at the trial was insufficient.

2. PROHIBITION (§ 10) — SUBPŒNA DUCES TECUM — DISOBEDIENCE.

Where neither in the petition for a subpœna duces tecum against one not a party to the action nor on the motion to quash the subpœna were any facts shown from which the court could determine the relevancy and materiality of the evidence, the production of which was sought, the court had no jurisdiction to enforce obedience to the subpœna and would be restrained from so doing by prohibition.

Original prohibition proceeding by the State, on the relation of the Ozark Cooperage & Lumber Company, against Gustavus A. Wurdeman, Judge of Division No. 2 of the Circuit Court of St. Louis County. Preliminary rule made absolute.

Block & Sullivan, of St. Louis, for relator.

NORTONI, J.

This is an original proceeding in prohibition. From the preliminary writ and the respondent's return thereto, it appears there is no controversy touching the facts. The respondent is judge of the circuit court of St. Louis county and presides in division No. 2 thereof. There is pending in that court the case of George W. Walker v. Frederick S. Charlot et al., wherein it is alleged that the plaintiff in that suit recovered a judgment several years ago against the Ozark Cooperage Company; that Frederick S. Charlot and others named in the petition constituted the president and board of directors of that corporation; that such officers dissolved the corporation thereafter and organized another one under the same name, that is, the Ozark Cooperage Company, and paid for the capital stock of the succeeding corporation through turning over to it all of the assets of the prior one against which plaintiff had recovered judgment; that such constituted a fraud on the rights of the plaintiff; and that, as the defendants in that suit had received the benefits of the fraud, they should compensate his judgment theretofore recovered against the first corporation of which they were officers. It seems in the interim a third corporation has been organized and chartered under the laws of the state of New Jersey under the name of the Ozark Cooperage & Lumber Company, and it is this corporation that is the relator here.

In connection with his suit against Charlot and...