State v. Killoren

• Decision Date: 05 April 1921
• Docket Number: No. 17412.,17412.
• Citation: 229 S.W. 1097
• Parties: STATE ex rel. METHUDY v. KILLOREN, Circuit Judge.
• Court: Missouri Court of Appeals

229 S.W. 1097

STATE ex rel. METHUDY v. KILLOREN, Circuit Judge.

No. 17412.

St. Louis Court of Appeals. Missouri.

April 5, 1921.

Rehearing Denied May 3, 1921.

A. C. Davis and Randolph Laughlin, both of St. Louis, for relatrix.

E. W. Foristel and M. C. Early, both of St. Louis, for respondent.

BRUERE, C.

This is an original application to this court to obtain a writ of prohibition against Hon. William Killoren, one of the judges of the circuit court of the city of St. Louis, to prohibit him from further proceeding on, with, or under, an order, entered by him, enjoining and restraining the relatrix and her attorneys from taking depositions in a suit brought by relatrix against her husband, Eugene R. Methudy, pending in said circuit court.

Relatrix's petition sets up, in substance, that the respondent, Hon. William Killoren, was one of the judges of the circuit court of the city of St. Louis; and that acting as such he had exceeded his jurisdiction and had undertaken to exercise illegal and oppressive power in a certain cause pending in said court entitled Edna B. Methudy, Plaintiff, v. Eugene R. Methudy, Defendant. Relatrix further alleges that, after the filing of the petition in said suit, and on the same day, to wit, January 22, 1921, she gave notice, in due and usual form, that depositions would be taken in said cause on behalf of the plaintin: and that said notice was duly served on the defendant on January 22, 1921. Said petition further alleges that on January 24, 1921, the defendant filed in said court in said cause a petition praying said court for a temporary injunction, enjoining and restraining the said plaintiff and her attorneys frond taking depositions or in other way proceeding in said cause. The petition then alleges that respondent, on said 24th day of January, 1921, granted the prayer of the petition for injunction and made and entered of record, in said cause and court, an order enjoining and restraining the relatrix and leer attorneys of record from taking depositions and in any other way proceeding in said cause until the further order of said court. The petition concludes with a prayer for a writ of prohibition directed to the said Hon. William Killoren, judge of the said circuit court of the city of St. Louis, commanding him to desist and refrain from further proceeding on, with, or under, the court's said order of January 2A, 1921, entered in said cause. A certified copy of the record in the said case of Edna B. Methudy, Plaintiff, v. Eugene It. Methudy, Defendant, is filed with the petition and made a part thereof.

On the petition of the relatrix this court issued its preliminary writ of prohibition, directed to the respondent, as prayed for in the petition.

The respondent made return to said writ. Upon this return the relatrix has moved for judgment that the preliminary writ of prohibition heretofore issued herein be made absolute and peremptory.

The undisputed facts in this case, necessary to an understanding of the legal proposition involved, are these: On January 22, 1921, Edna B. Methudy, the relatrix, filed a suit in the circuit court of the city of St. Louis against Eugene R. Methudy, her husband. The suit was in the nature of a bill in equity to annul and set aside a decree of divorce rendered on August 12, 1920, by said circuit court in favor of said Eugene R. Methudy and against said Edna B. Methudy. The ground alleged, in the petition in said suit, for setting aside said decree of divorce, was fraud practiced by the husband in the procurement thereof.

Because of the view we take of this case, as hereinafter expressed, it is unnecessary to set out the allegations contained in the petition in said cause.

Upon the filing of said petition, summons was issued and served on the defendant Eugene B. Methudy, returnable to the February term, 1921, on said 22d day of January, 1921. On the same day said Eugene B. Methudy was served with notice, in due form, that depositions of witnesses to be read in said cause, on the part of the plaintiff, would be taken on the 26th day of January, 1921.

Thereafter, on said 24th day of January, 1921, the defendant Eugene B. Methudy filed in said circuit court his petition in said cause, in the nature of an injunction, praying for an order enjoining the plaintiff Edna B. Methudy and her attorneys from taking depositions or in any other way proceeding in said cause until the further order of said court.

On January 24, 1921, the petition for injunction was submitted to the respondent, judge of division No. 2 of the circuit court of the city of St. Louis, and judgment was entered by said court enjoining and restraining the plaintiff and her attorneys of record, until the further order of said court, from taking depositions or in any other way proceeding in said case.

It is against this judgment that relatrix's application for the writ of prohibition is directed.

The sole question presented in this case for determination is: Whether or not the lower court had lawful authority to make the restraining order complained of herein.

Under the provisions of section 5440, Revised Statutes of 1919, any party to a suit pending in any cause in this state may take the deposition of any witness.

Said section reads:

"Any party to a suit pending in any court in this state may obtain the deposition of any witness, to be used in such suit, conditionally."

The word "conditionally," in the statute, does not relate to or limit the right to take, but the right to use the deposition. Curtis v. Dry Goods Co., 179 Mo. App. loc. cit. 586, 162 S. W. 1049; Ex parte J. H. Livingston, 12 Mo. App. 80; State ex rel. v. Burney, 193 Mo. App. loc. cit. 334, 1S6 S. W. 23.

Relatrix's suit, to set aside the said judgment and decree of divorce, was commenced when the petition therein was filed with the clerk of said circuit court. After the filing of said petition the suit was pending. The right to take depositions is given when a suit is pending, this is the only prerequisite condition made in the statute.

It appears from the record in this case that the main ground for making the restraining order, of Jahuary 24, 1921, was the conclusion reached by the learned respondent that the petition, in the suit in which the notice to take depositions was given, did not state facts sufficient to constitute a cause of action.

The statute has no reference to the state of pleadings in the suit pending. The failure of the petition to state a cause of action will not deprive a party to a suit of the right to obtain the deposition of a witness. It is therefore unnecessary for us to decide whether or not the said petition was subject to demurrer.

The conclusion announced in the case of Ex parte James E. Munford, 57 Mo. 603, is decisive of the question under discussion.

The facts in that case were: A demurrer to a petition, for failure to state a cause of action, was sustained. Leave was given to file an amended petition...