State ex rel. St. Louis Union Trust Co. v. Sartorius

• Decision Date: 25 March 1943
• Docket Number: 38338
• Citation: 171 S.W.2d 569,351 Mo. 111
• Parties: State of Missouri at the Relation of St. Louis Union Trust Company and Miles A. Hinton, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

171 S.W.2d 569

351 Mo. 111

State of Missouri at the Relation of St. Louis Union Trust Company and Miles A. Hinton, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis

No. 38338

Supreme Court of Missouri

March 25, 1943

Rehearing Denied June 7, 1943.

Preliminary rule discharged.

Lowenhaupt Waite & Stolar and Anderson, Gilbert, Wolfort, Allen & Bierman for relators.

(1) The only procedure whereby one party may compel another party to produce papers and documents for inspection is that provided in R. S. 1939, Sec. 1079. Bond v. Worley, 26 Mo 253; State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Trimble, 254 Mo. 542, 163 S.W. 860; State ex rel. Mo. Pac. Ry. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027; State ex rel. Pieper v. Mueller, 227 Mo.App. 1101, 59 S.W.2d 719; State ex rel. Watkins v. Donnell Mfg. Co., 129 Mo.App. 206, 107 S.W. 1112; R. S. Mo. 1939, sec. 1079; 6 Wigmore on Evidence (3rd Ed. 1940), sec. 1857, p. 443. (2) If a party is compelled to produce books or documents for inspection in contravention of R. S. 1939, Sec. 1079, or by a mode other than that provided by said section, such compulsion is violative of Sec. 11, Art. II, Constitution of Missouri, and of Amendment 4, Constitution of the United States, prohibiting unreasonable search and seizures. In re Brown, 72 Mo. 83; State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Trimble, 254 Mo. 542, 163 S.W. 860; State ex rel. Schlueter Mfg. Co. v. Beck, 337 Mo. 839, 85 S.W.2d 1026; Constitution of Missouri, Art. II, Sec. 11; Constitution of the United States, Amendment 4; R. S. 1939, sec. 1079. (3) R. S. 1939, Sec. 1079, places the burden of proof upon the applicant for a motion to inspect documents to show that the documents sought are in the possession or under the control of the adverse party and that the documents sought contain evidence relating to the merits of an action or defense therein of a suit then pending between the parties. State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Trimble, 254 Mo. 542, 163 S.W. 860; State ex rel. Mo. Pac. Ry. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027; State ex rel. Ozark Cooperage & Lbr. Co. v. Wurdeman, 176 Mo.App. 540, 158 S.W. 436; State ex rel. Page v. Terte, 342 Mo. 925, 25 S.W.2d 459; R. S. 1939, sec. 1079; Kieffe v. La Salle Realty Co., 163 La. 824, 112 So. 799, 53 A. L. R. 82; Kullman, Salz & Co. v. Superior Court, 15 Cal.App. 276, 114 P. 589. (4) Production of documents for inspection will not be compelled if the party sought to be coerced has once directly denied under oath the possession of the documents or their materiality to the case then pending. Schlesigner v. Ellinger, 134 Wis. 397, 114 N.W. 825; 17 Am. Jur. 31; 1 Pomeroy's Equity Jur. (5th Ed. 1941), pp. 338, 340; R. S. 1939, sec. 1079; Constitution of Missouri, Art. II, Sec. 11; Constitution of the United States, Amend. 4. (5) The plaintiff cannot under the pleadings properly and legally obtain inspection of any documents which may be in the possession or under the control of this relator by the procedure set out in R. S. 1939, Sec. 1079, and he cannot therefore obtain inspection by the indirect method of moving for a citation of contempt and seeking a subpoena duces tecum at the hearing thereof. Monsanto Chemical Co. v. Smelting Co., 253 S.W. 1006; Schneider v. Schneider, 347 Mo. 102, 146 S.W.2d 584; State ex rel. Cass County v. Mo. Pac. Ry. Co., 149 Mo. 104; Stevens v. Lever Bros. Co., 155 S.W.2d 540; Traverse v. Kansas Pacific Ry. Co., 63 Mo. 421; R. S. 1939, sec. 1079. (6) A subpoena duces tecum, in the absence of a statute specifically so providing, does not run to an adverse party litigant. Duke v. Brown, 18 Ind. 111; Ex parte Calhoun, 15 S.W. 684; Klair v. Railway Co., 78 A. 1085; R. S. 1939, secs. 1075-1078. (7) The subpoena duces tecum was issued by the respondent for the hearing on the citation for contempt and on the motion to strike out the return of the St. Louis Union Trust Company; and was, therefore, issued for a trial wherein R. S. 1939, Secs. 1075-1078, provide the only procedure. The plaintiff, Nail, cannot use the contempt proceeding and a subpoena duces tecum, as an indirect method to see paper which he is not authorized under the statute to inspect. R. S. 1939, secs. 1075-1078. (8) There is no statutory provision in Missouri for the use of a subpoena duces tecum in aid of securing production and inspection of documents in the possession or under the control of parties. The right to such subpoena exists only by the common law. In the absence of such a statutory provision, this court should, as it has done in the analogous situation of the deposition statutes, refuse to approve such usage of a subpoena duces tecum. State ex rel. McCulloch v. Taylor, 268 Mo. 312, 187 S.W. 1181; State ex rel. Pieper v. Mueller, 227 Mo.App. 1101, 59 S.W.2d 718; State ex rel. Stroh v. Klene, 276 Mo. 206, 207 S.W. 496; R. S. 1939, secs. 1075-1079; Constitution of Missouri, Art. II, Sec. 11; Constitution of the United States, Amendment 4. (9) The subpoena duces tecum was improperly issued because the application for the subpoena duces tecum did not sufficiently allege facts showing any materiality and relevancy of the said paper. Kieffe v. La Salle Realty Co., 163 La. 824, 112 So. 799; Kurfman, Salz & Co. v. Superior Court, 15 Cal.App. 276, 114 P. 589; State ex rel. Ozark Cooperage & Lbr. Co. v. Wurdeman, 176 Mo.App. 540, 158 S.W. 436. (10) Prohibition is the proper remedy where a judge of the Circuit Court of St. Louis has exceeded his powers in issuing a subpoena duces tecum. State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Trimble, 254 Mo. 542, 163 S.W. 860; State ex rel. Chicago, R. I. & P. Ry. Co. v. Woods, 316 Mo. 1032, 292 S.W. 1033; State ex rel. Feinstein v. Hartman, 231 S.W. 982; State ex rel. Ozark Cooperage & Lbr. Co. v. Wurdeman, 176 Mo.App. 540, 158 S.W. 436; State ex rel. Page v. Terte, 324 Mo. 25, 25 S.W.2d 459.

Spencer M. Thomas and Harry Gershenson for respondent.

(1) Amended motion to inspect herein sufficiently sets out the relevancy and materiality of the document sought to be inspected. (2) There is no dispute that the 1940 will of William G. Yantis, deceased, is in the possession of St. Louis Union Trust Company and that Miles A. Hinton, assistant trust officer, has been appearing herein in behalf of said St. Louis Union Trust Compeny throughout the entire proceeding. (3) The denial under oath by relators of the possession of the documents and of their materiality to the case then pending is not a sufficient compliance with the order. (4) The writ of prohibition should not issue herein because, even if subpoena duces tecum is not proper to bring in the 1940 document, the order on Miles A. Hinton, assistant trust officer, to appear as a witness and testify is wholly proper and cannot be interfered with. State ex rel. McCulloch v. Taylor, 268 Mo. 312.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Upon the application of the St. Louis Union Trust Company and Miles A. Hinton our preliminary rule in prohibition was issued, restraining Honorable Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis, from proceeding further in the case of Charles Wesley Nail against the St. Louis Union Trust Company and others. He was specifically prohibited from enforcing a subpoena duces tecum issued on August 13, 1942. Judge Sartorius filed his return and the question, upon the relators' motion for judgment on the pleadings, is whether the rule in prohibition should be made permanent or discharged.

Nail brought suit against the trust company and others, claiming that he rendered certain services to William G. Yantis, from 1894 until his death in 1942, and that in July, 1939, Mr. Yantis, in consideration of the services rendered, promised and agreed to "give, bequeath and devise" to Nail all of his stock in the Shapleigh Hardware Company but that Mr. Yantis, by the will filed for probate in 1942, breached the agreement which he was entitled to have specifically performed.

After the suit was instituted and before the defendants had filed any pleadings Nail filed an amended, verified motion asking that the trust company be required to produce for his inspection, with the right of copying, a "paper writing" executed by Mr. Yantis in 1940. The motion, in part, says that the trust company "is in possession of a certain paper writing, executed in the year, 1940, by William G. Yantis, now deceased, as a Last Will and Testament; that said paper writing contains evidence relating to the merits of this action and material to the issues thereof, in that the said paper writing contains statements by said decedent tending to show his feeling, affection and intentions toward plaintiff and defendants herein at the date thereof; and more specifically, in that said paper writing dated in 1940, shows the intention of said decedent to leave to Frances Williams the property of decedent at 5077 Westminster Place, St. Louis, Missouri, while under the provisions of the paper probated in the St. Louis Probate Court on May 1, 1942, said decedent leaves his entire residuary estate to said Frances Williams."

The court sustained the motion, permitting the plaintiff to inspect and copy "that portion or portions of the paper writing . . . referring to or mentioning or making any provision for the plaintiff in the above entitled cause."

The trust company filed no response to the plaintiff's motion but did file what it denominates a return to the court's order, stating "that it has not in its possession and never has had any paper writing dated in 1940 and executed by William G. Yantis as his will at said time which contains the name of said plaintiff, Charles Wesley Nail, or which refers to or mentions or...