Ex Parte Noell v. Bender

295 S.W. 532, 317 Mo. 392, 1927 Mo. LEXIS 741

• Court: Supreme Court of Missouri
• Decided: June 6, 1927
• Status: Published

Opinion

WALKER, J.

This is an application for a writ of habeas corpus, in which the petitioner seeks release from a judgment for contempt rendered against him by a notary public of Marion County, under which he is restrained of his liberty by the sheriff of said county, for refusing to appear before said notary public and give his deposition and testify in a certain matter in controversy pending in the Circuit Court, of-the City of St. Louis, between Charles P. Noell, the petitioner herein, as plaintiff, and a railroad company and others as defendants.

The sheriff’s return shows that he holds "the petitioner under the authority of a writ of attachment for contempt issued by said notary public as stated.

I. The burden of the petitioner’s complaint upon which he bases his claim for a release is, first, that the notary was without authority to issue a writ of attachment to compel the attendance of the petitioner as a witness before him ’in a proceeding to take depositions, and hence without jurisdiction to adjudge him guilty of contempt for his refusal to comply with said writ; second, that Section 5460, Revised Statutes' 1919, in so far as it attempts to confer power upon a notary public to compel the attendance of a witness in the same manner as a court of record, is void, and in violation of Article III and Section 1 of Article VI of the Constitution of this State; and third, because the sheriff’s return does not show that a subpoena was served upon the petitioner requiring his attendance as a witness before said notary public, and that his mileage fees for going to and returning from the place where the depositions were to be taken, being more than forty miles from petitioner’s place of residence, and one day’s attendance, were not tendered to him.

II. The right to take depositions, which is purely statutory, may be exercised by either party to a suit, to be used in such suit conditionally (Sec. 5440, R. S. 1919). Notaxdes public are designated among other officers authorized to exercise this power. [Sec. 5443, R. S. 1919.] Not only does this statute expressly con-jer p0weI.; in construing the same we have held that such officers in performing this function act in a judicial capacity, [State ex rel. Farber v. Shot, 304 Mo. l. c. 527, and cases.] In harmony with this construction and as supplemental to the power thus conferred, the statute- (Sec. 5460, R. S. 1919) further provides (so far as applicable to the facts in this case) that “every person, judge or other'officer of this State required to take depositions of witnesses . . . shall have power to issue subpoenas for witnesses to appear and testify, and to compel their attendance in the same manner and under like penalties as any court of record of this State. Any person summoned as a witness . . . and attending, who shall refuse to give evidence, which may be lawfully required to be given by him, on oath or affirmation, may be committed to prison by the officer or person authorized to take his deposition or testimony, there to remain without bail until he gives such evidence or until he be discharged by due course of law.”

For almost three-quarters of a century this court in construing the foregoing statutes has uniformly held that a notary public in taking depositions is authorized* to commit a witness for contempt for refusing to answer questions other than those which it is his personal privilege to refuse to answer. [Ex parte Munford, 57 Mo. 603; Ex parte McKee, 18 Mo. 599; Ex parte Priest, 76 Mo. l. c. 234; State ex rel. Farber v. Shot, 304 Mo. 523 and cases 527.] In the earlier cases this power is simply declared without a statement of the reason therefor, but in the later cases, while particularly construing other than the general statutes, the reason for the rule as applied to the latter is generally stated to be that a notary, in the taking of depositions, acts as an arm of the court and as such is clothed with judicial power. This being true, the contention that the notary was without this power must go for naught. [State ex rel. Hurwitz v. North, 304 Mo. 607; State ex rel. Farber v. Shot, 304 Mo. 523; Redmond v. Railroad, 225 Mo. l. c. 732.]

In view of the nature of the notary’s power to punish a recalcitrant witness for contempt for refusing to give his deposition in a suit then pending, as at bar, it must follow as a logical sequence of the power delegated to the notary that the same rule concerning the right of due process applicable to the court must, under our law, apply to a notary. It has been held here and elsewhere from time immemorial that the right of a court to enforce its orders and decrees and to punish for contempt constitutes due process of law. The statute having authorized the delegation of this power by the courts and the same having been exercised by the notary in accordance with the prescribed procedure, the contention of the petitioner as to a denial of due process and the consequent invalidity of Section 5460, Revised Statutes 1919, is without merit. [State ex inf. Crow v. Shepherd, 177 Mo. l. c. 218, 99 Am. St. Rep. 624; Rothschild v. Steger & Sons, 256 Ill. 196, 42 L. R. A. (N. S.) 793, Ann. Cas. 1913 E, 276; In re Barnes, 204 N. Y. 108, affd. 147 App. Div. 396; Drady v. Polk Co. Dist. Ct., 126 Iowa, 345.]

III. It is further contended by the petitioner that the service of notice upon him to take his despostion and a subpoena requiring him to attend and give testimony at Hannibal was an invalid services, the residence of the latter being at the time in the city of St. Louis. This contention assumes that notice to take a de position and subpoena requiring the attendance of one as a witness can only be served at the place of abode of the party required to be notified or of the witness whose testimony is desired to be taken. Personal service, such as is required in this instance, is effected by serving the person to be notified where found. [Sec. 5430, U. S. 1919; Swink v. Anthony, 107 Mo. App. 60.] The statute (See. 5431, R. S. 1919, as amended, Laws 1925, p. 216), regulating this procedure, admits of no other interpretation consonant with reason. Of what possible effect, other than in the determination of his fees for attendance, can the place of service have upon the rights of the witness when the effective purpose of the subpoena is to notify him of the time when and the place where his deposition is to be taken ?

IY. A contention subordinate to the foregoing is that the service is invalid in that the officer’s return thereon does not show that the petitioner resides more than forty miles from the place of trial and w^etiler legal fees have been tendered or paid to him; that in the absence of this showing no legal obligation was imposed upon the petitioner to attend and give his testimony as required in the subpoena. The manner of service in this case was personal. That it was had in the county where the deposition was to be taken is conceded by the petitioner and the sheriff so returns. In addition, it is not denied that the time and place where the testimony was to be taken was set forth in the subpoena. These requisites constitute the mandatory requirements of the section (Sec. 5431, as amended, Laws 1925, p. 216), in that they contain the information necessary to compel the attendance of the witness. The added requirements of the return, as to the residence of the witness, if more than forty miles from the place of trial, and as to the payment or tender of his. fees, become essential only in the determination of the amount of his compensation where he resides and is served more than forty miles from the place of trial. Where the facts are as in the case at bar, these requirements as to the return become non-essential and their omission will not lessen the duty of the witness to attend and give his testimony in compliance with the mandatory terms of the subpoena. Thus much for the construction of the law as authorized by its terms. As to the facts, it appears that the petitioner resided at the place of the trial and the added requirement of the subpoena was not authorized to be made by the sheriff, because unsupported by the facts.

Finding no merit in the petition the prisoner is ordered to be remanded to the custody of the sheriff and by him detained until he appears and gives his testimony in conformity with the order of the notary public.

All concur.