State, ex rel. Ozark Cooperage & Lumber Company v. Wurdeman

• Decision Date: 05 July 1913
• Citation: 158 S.W. 436,176 Mo.App. 540
• Parties: STATE OF MISSOURI ex rel. OZARK COOPERAGE & LUMBER COMPANY, Relator, v. GUSTAVUS A. WURDEMAN, JUDGE, Respondent
• Court: Missouri Court of Appeals

158 S.W. 436

176 Mo.App. 540

STATE OF MISSOURI ex rel. OZARK COOPERAGE & LUMBER COMPANY, Relator, v. GUSTAVUS A. WURDEMAN, JUDGE, Respondent

Court of Appeals of Missouri, St. Louis

July 5, 1913

Original Proceeding in Prohibition.

WRIT MADE ABSOLUTE.

Block & Sullivan for relator.

(1) An application for a subpoena duces tecum for an inspection or for the production of documentary evidence, must so state the facts as that the court may therefrom determine the materiality and necessity thereof. It is not enough to say that they are material or necessary, because the court, and not the litigant, must determine that question. State ex rel v. Trust Co. (oral opinion of the Supreme Court cited as so holding in State ex rel. v. Tobacco Co., 177 Mo 43); United States v. Railroad Assn., 154 F. 268; 4 Ency. of Evidence, pp. 816-819; Condect v. Wood, 25 N. J. L. 322; Jenkins v. Bennett, 40 S.C. 400; Neafie v. Miller, 37 Fla. 180; Bissell v Insurance Co., 77 N.Y.S. 536; Railroad v. Lewis, 58 S. E. (Ga.) 676; Bentley v. People, 107 Ill.App. 247. (2) This subpoena constituted an unreasonable search and seizure of relator's records contrary to sec. 11, art. 11 of the Constitution. Ex parte Brown, 72 Mo. 89; Hale v. Henkel, 201 U.S. 76; State v. Davis, 117 Mo. 617; State ex rel. v. Bragg, 51 Mo.App. 334. (3) Where a court is proceeding without jurisdiction, or in excess of its jurisdiction, it may be prohibited from so doing. State ex rel. v. McQuillin, 152 S.W. ___; State ex rel. v. Riley, 203 Mo. 192. In this case relator is entitled to a peremptory writ prohibiting respondent from proceeding further with the execution or enforcement of said subpoena, or (that which is the precise equivalent) a writ affirmatively commanding respondent to quash the subpoena as improvidently issued. Relator was not a party to the case of Walker v. Charlot and hence had no right of appeal therein, and no remedy against this subpoena whatever except an extraordinary remedy at the hands of a court of supervisory jurisdiction. The rule is, that an extraordinary remedy will not be denied where there is no appeal; nor even where there is an appeal, if the remedy by appeal is not equally efficacious. State ex rel. v. Sake, 153 Mo.App. 282; State ex rel. v. Dunton, 128 Mo.App. 314. (4) The return of the learned judge does not deny (and therefore admits) the averments of the alternative writ. State ex rel. v. Adams, 161 Mo. 363; State ex rel. v. Riley, 219 Mo. 691.

Henry B. Davis and Charles Erd for respondent.

(1) (a) Courts have inherent power, which is frequently confirmed by express statutes, to issue a subpoena duces tecum in a proper case, and this power is not affected by the constitutional guaranties against unreasonable searches and seizures. 40 Cyc. 2166-2167; Hale v. Henkel, 201 U.S. 43; U. S. v. Assn., 148 F. 486; State ex inf. v. Tobacco Co., 177 Mo. 43. (b) The constitutional guaranties invoked by the relator have no application to the subpoenas in issue in the case at bar, which specifically describe the documentary evidence whose production the subpoenas command. These guaranties may protect against a subpoena duces tecum which is so sweeping in its terms as to be unreasonable. Hale v. Henkel, supra. (2) (a) A motion for a subpoena duces tecum is addressed to the discretion of the court; and as a legal means of obtaining testimony, it cannot be regularly opposed by the opposite party, in his character, as such, nor by the person to whom the subpoena is addressed, where the evidence commanded to be produced is specifically described. 40 Cyc. 2169; U. S. v. Burr, 25 F. Cas. No. 14,692d. (b) Counsel for relator, in their brief, at page three, concede the foregoing proposition when they declare that the court, and not the litigant, must determine the question of the materiality of the evidence sought to be produced. (3) (a) Where the court, on a motion to recall and quash a subpoena duces tecum, filed by the party to whom the subpoena is directed, determines that the evidence ordered to be produced is material, after a full and complete investigation of the facts, and consideration of the issues involved, it is immaterial that the application for the subpoenas fails to disclose, on its face, the materiality of the evidence. The omission of the application to state facts showing the materiality of the evidence is cured when these facts are adduced on the hearing of the motion to recall and quash the subpoena. U. S. v. Assn., 148 F. 486. (b) And where a party asserts that his rights are invaded by a subpoena duces tecum, and has applied to the court whose duty it is to enforce it, to set aside such process on the ground that it is invalid, he is bound by the court's determination of the validity of such process. 40 Cyc. 2170; Matter of Foster, 139 A.D. 769. (4) A subpoena duces tecum is available to compel the production of the books and papers of a corporation, although the corporation is not a party to the suit. 40 Cyc. 2168; Winder v. Diffenderffer, 2 Bland (Md.), 166; Wertheim v. Railroad, 15 F. 716, 21 Blatchf. 246. (5) (a) A subpoena duces tecum must specify with as much precision as is possible the particular books or documents desired, as a party is not entitled under such a writ to have brought into court a mass of books and papers that he may search through them to gather evidence; but the description need not be exact and full in all particulars, and it is sufficient if the books and papers are designated with reasonable certainty, so that the witness may know what is required of him. 40 Cyc. 2168; In re Storror, 63 F. 564; U. S. v. Babcock, 24 F. Cas. No. 14,484. (b) The subpoenas duces tecum whose enforcement the relator is seeking to enjoin by writ of prohibition are in conformity to the law, as above declared, with respect to legal process, and the court, in enforcing the same, was not proceeding without jurisdiction, nor acting in excess of the jurisdiction conferred upon it by law. (6) Relator is in no position to complain of the enforcement of the subpoenas duces tecum under consideration in the case at bar, for it nowhere appears in the record before this court that it offered, at the hearing on the motion to recall and quash said subpoenas, to show that the books, records, documents and papers called for did not contain material evidence to the plaintiff's case in the action in which the subpoenas were issued. There was nothing to prevent the relator, if there was a bonafide doubt in the minds of its officers as to whether said documentary evidence was material, in any respect, to the case in which it was ordered to be produced, to submit said evidence to the inspection of the court, who would have then been in a better position to decide on the question of its production. 40 Cyc. 2170; U. S. v. Hunter, 15 F. 712.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

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...