The State ex rel. Stroh v. Klene
| Citation | 207 S.W. 496,276 Mo. 206 |
| Parties | THE STATE ex rel. STROH et al. v. BENJAMIN J. KLENE and VITAL W. GARESCHE, Judges, and PORTAGE RUBBER COMPANY |
| Decision Date | 19 December 1918 |
| Court | United States State Supreme Court of Missouri |
Permanent writ issued.
C. R Skinker and P. C. Wise for relator.
The circuit court erred in requiring relators to produce documents for examination before the special commissioner taking depositions, and thereby exceeded its jurisdiction. (a) The law confers no such power on that court. Secs 1944-1949, R. S. 1909; State ex rel. v. Taylor, 268 Mo. 312, 319. The order of production violates Section 11 of Article 2 of Missouri Constitution, because it compels production of irrelevant evidence. Holcombe v. Hewson, 2 Campbell, 391; Bain v. Clark, 39 Mo. 252, 256; Paramore v. Lindsey, 63 Mo. 63, 65; Henry v Woods, 77 Mo. 277, 281; Griggs v. Deal, 30 Mo.App. 152, 155; Smith v. Bank, 147 Mo.App. 461, 474; Powers v. Railway, 33 Ohio St. 429, 437; Greaner v. Mullen, 15 Pa. St. 200, 208; Grubey v. Bank, 133 Ill. 79, 80; Bynum v. Miller, 89 N.C. 393. It constitutes an unreasonable search and seizure. State ex rel. v. Trimble, 254 Mo. 542, 556. (b) That order, and the petition therefor, violated the same constitutional provision, because the description of desired documents was too general and authorized an indiscriminate search of defendant's private papers. Ex parte Brown, 72 Mo. 94.
Harper E. Osborn, George T. Priest, Robert E. Moloney, and Albert D. Nortoni for respondents; Boyle & Priest of counsel.
In Banc
Prohibition.
This proceeding is based on an application filed in this court by relators for a writ of prohibition. It is directed against respondents, Judges Klene and Garesche, of the circuit court of the city of St. Louis, and the Portage Rubber Company, the plaintiff in an action pending in the circuit court of that city, and out of which this proceeding arises. One of these judges succeeded the other in the discharge of judicial duties in the division of the circuit court during the pendency of this suit in which their exercise of jurisdiction is impugned.
The Portage Rubber Company, a corporation, brought an action on account, against John E. Stroh and Wm. T. Flynn, the relators herein, in the circuit court of the city of St. Louis. After the defendants had been summoned and the entry of their appearance, the plaintiff served notice on them for the purpose of taking their depositions. Under the statute, Section 6390, Revised Statutes 1909, authorizing that procedure, in cities of 50,000 and over, a special commissioner was appointed to take the depostions. While defendant Flynn was being examined, before the commissioner, plaintiff applied to the circuit court for an order upon the defendants, to produce certain books and papers before the commissioner, alleging, among other things, that their inspection was necessary in connection with the account sued upon. The court entered an order, as requested by the plaintiff; whereupon, the defendants moved that the same be vacated, on the ground that the court was without jurisdiction to require the defendants to produce the books and papers before a special commissioner, and that the court's order was in violation of Section 11 of Article 2 of the Constitution of Missouri, forbidding unreasonable searches and seizures. The court overruled this motion. Plaintiff then made formal application for defendants' commitment, because of their failure and refusal to comply with the court's order. Defendants, as relators herein, thereupon applied to this court for a preliminary rule on the judges named, together with the Portage Rubber Company, to prohibit the further enforcement of the order directed by the circuit court against defendants, and to make return to said writ. The return of the judges avers that they were acting within their jurisdiction, and pray that the rule be discharged. We are not concerned, for reasons to be stated, with the return of the Portage Rubber Company, and its averments are, therefore, immaterial.
I. The sole question entitled to consideration in this proceeding is the propriety of the exercise of jurisdiction by the judges of the circuit court. An inquiry as to who constitute the necessary parties is not inappropriate. Under our statute (Sec. 2622, R. S. 1909) the purview of the writ of prohibition is declared to be the prevention of the usurpation of judicial power. [State ex rel. v Shelton, 238 Mo. 281, 142 S.W. 417; State ex rel. v. Tracy, 237 Mo. 109, 140 S.W. 888 et seq.; State ex rel. v. Broaddus, 234 Mo. 358, 137 S.W. 268.] This is consonant with the origin, history and purpose of the writ. [22 R. C. L. section 3, p. 4 and notes; 111 Am. St. Rep. 929.] A judgment, therefore, in excess of this well defined purpose would be unauthorized, besides unnecessary, because, if the court improperly assuming jurisdiction be restrained, then those in whose behalf the assumption was made are not only deprived of the instrumentality through which they sought to act, but are rendered otherwise powerless in that behalf. From this it follows, that the joinder as a party respondent of the Portage Rubber Company was not only improper, but wholly unnecessary. We have heretofore so held (State ex rel. Powers v. Rassieur, 184 S.W. 116; State ex. rel. v. Bright, 224 Mo. 527), and wherever the subject has received more than cursory consideration, in jurisdictions where stat...
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