State Ex Rel. Bacorn v. District Court

*300 MR. JUSTICE HOLLOWAY delivered the opinion of the court. On February 21 of this year, Charles T. Sachet made affidavit to the effect that there was then pending in the district court of Park county an ‘action wherein he was plaintiff, and the Jardine Mining Company, the Jardine Gold Mining & Milling Company, H. C. Bacorn, M. E. Sower, Frederick Kennedy, Henry C. Stifel and F. W. Bacorn were *301 defendants; that summons had been served on all of the defendants excepting Kennedy and Stifel; that the defendants served had appeared in the action by demurrers, and that H. C. Bacorn and M. E. Sower resided in Park county. A copy of this affidavit and a notice that the depositions of H. C. Bacorn and M. E. Sower would be taken before Elbert F. Allen, a notary public, at his office in Livingston on March 16, were duly served. The notice stated that the depositions were to be used by the plaintiff upon the trial of the action entitled Sacket v. Jardine Mining Co. et al. On March 19, Mr. Sacket made and filed in court his affidavit reciting the foregoing facts and, in addition thereto, that subpoenas were duly issued and served; that H. C. Bacorn and M. E. Sower appeared before the notary at the time and place designated, were duly sworn and gave their names, but thereafter refused to testify further, submitting in writing their objections; and that the notary thereupon caused a true transcript of the proceedings before him to be certified and filed in the district court. When this affidavit was filed, the court caused a citation to be issued and served, requiring the witnesses to appear and show cause why they should not be punished for contempt. They, appeared and moved to quash the citation, but the motion was overruled and each then entered a plea of not guilty. Testimony was introduced from which the court found them guilty, and to review that action a writ of certiorari was issued from this court, a return made thereto, and the matter argued and submitted for determination. Section 10645, Revised Codes, provides: “The testimony of a witness in this state may be taken by deposition in an action at any time after the service of the summons or appearance of the defendant * * * when the witness is a party to the action,” etc. Section 9908 provides: “The following acts or omissions, in respect to a court of justice, or proceedings therein, are con- *302 tempts of the authority of the court: # * * Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness.” And section 10624 provides: “Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness # * * may be punished as a contempt by the court,” etc. A contempt proceeding of this character is criminal in its nature and entirely independent of the civil action out of which it arises (State ex rel. Flynn v. District Court, 24 Mont. 33, 60 Pac. 493; State ex rel. Boston & Mont. etc. Co. v. Judges, 30 Mont. 193, 76 Pac. 10; Dunlavey v. Doggett, 38 Mont. 204, 99 Pac. 436), and where, as in this instance, _the alleged contempt is not committed in the immediate presence of the court, the proceeding to punish must be instituted by filing an affidavit. (See. 9910, Rev. Codes; Boston & Mont. etc. Co. v. Montana Ore Pur. Co., 24 Mont. 117, 60 Pac. 807.) The affidavit is, in fact, the complaint in the contempt proceeding. It must state facts sufficient to disclose that a contempt has been committed (State ex rel. Rankin v. District Court, 58 Mont. 276, 191 Pac. 772; Berger v. Superior Court, 175 Cal. 719, 15 A. L. R. 373, 137 Pac. 143), and no intendments or presumptions will be indulged in favor of its averments. (Frowley v. Superior Court, 158 Cal. 220, 110 Pac. 817.) In this instance the contempt proceeding was initiated by filing the Sachet affidavit of March 19, and the principal contention made in behalf of the witnesses, is that it does not state facts sufficient to constitute contempt. It will be observed from reading sections 9908 and 10624, above, that it is not the mere refusal to answer questions which constitutes contempt, but a refusal to answer as a witness. Section 10673 provides: “A witness *' # * must * * * answer all pertinent and legal questions.” Section 10674 declares: “A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself”; and section 10675 provides: “It is the right of a witness *303 to be protected from irrelevant, improper or insulting questions, and * * * to be examined only as to matters legal and pertinent to tbe issue.” To answer as a witness, then, means to answer pertinent and legal questions, and it is the refusal to answer only such questions as are pertinent and legal which constitutes the contempt now under consideration (In re MacKnight, 11 Mont. 126, 28 Am. St. Rep. 451, 27 Pac. 336); hence it would seem to follow, as of course, that to charge a witness with contempt, the complaint (affidavit) in the contempt proceeding must disclose that the facts sought to be elicited from the witness are pertinent to the matter in issue. To avoid the possible loss of material testimony consequent upon the delays which frequently occurred during the progress of litigation, the statute (sec. 10645, above) authorizes the deposition of a witness, who is a party to the action, to be taken at any time after service of summons or appearance of the defendant, even before the issues of fact have been made up. In other words, the phrase “matter in issue” (sec. 10674) is construed as synonymous with the “subject matter of the litigation” as disclosed by the complaint (Kibele v. Superior Court, 17 Cal. App. 720, 121 Pac. 412; 9 Jur. 404), and evidence which tends to prove any material allegation of the complaint is deemed “pertinent” within the meaning of the foregoing sections. (San Francisco Gas Co. v. Superior Court, 155 Cal. 30, 17 Ann. Cas. 933, 99 Pac. 359.) But these statutes do not authorize mere fishing expeditions by a plaintiff who does not have a cause of action, but who indulges the hope that, by a compulsory examination of his adversary, he may discover facts upon which to base a cause of action. They take the place of the former proceeding for discovery which the chancery courts sanctioned in the exercise of their ancillary jurisdiction, but to obtain discovery in equity it was necessary for the plaintiff in his bill to disclose, at least prima facie, that he had a cause of action, that is, that he had a title to, or interest in, the subject matter; that he was entitled *304 to the discovery; and that it would not be useless. While it was not necessary that his cause of action should be beyond dispute, still if his bill negatived the existence of a cause of action, discovery was refused as a matter of course. This subject is treated at length in 1 Pomeroy’s Equity Jurisprudence, fourth edition, sections 190-215, and a reference to the authority is sufficient here. Reasoning from analogy, it appears manifest that, before on'e party to a civil action can subject his adversary to the pains and penalties of a contempt proceeding, he must disclose to the court which is to hear the proceeding, that he has a cause of action which he has attempted to state, though it may be stated defectively (Clark v. Oregon Short Line R. R. Co., 38 Mont. 177, 99 Pac. 298), and that the defendant witness is in possession of facts pertinent to the matter in issue which he has refused to divulge after having been duly served with a subpoena. The complaint (affidavit) in the proceeding before us sets forth that an action was and is pending in the district court of Park county, but it does not disclose the character of the action. Although the entire proceeding is before us, we do not know, and cannot know, whether Mr. Sachet’s action is one for the recovery of damages for personal injuries or a suit to foreclose a mortgage; whether the subject matter of the litigation is an alleged libel, a conversion of personal property, a trespass upon realty or ultra vires acts of the officers of a corporation, and the court which adjudged these witnesses guilty of contempt was in no more favorable position than we are, unless it can be said that, by reason of the fact that the civil action was pending in the same court, that court could take judicial notice of the contents of the complaint in the action instituted by Sachet against the Jardine Mining Company and others. But it is the general rule, under statutes similar to ours (sec. 10532, Rev. Codes), that a court will not take judicial notice of the contents of pleadings in any action other than the one imme *305 diately before it. (5 Wigmore on Evidence, 2d ed., see. 2579.) In some jurisdictions, however, a contempt proceeding is treated as a part of the civil action out of which it arises, or so nearly related to it that the courts in those jurisdictions take judicial notice of the pleadings and proceedings in the main action itself. In this state, however, the contempt proceeding is entirely independent of the action out of which it arises, hence the trial court was not aided by any knowledge of the character of the civil action which it may have assumed to possess. The complaint (affidavit) herein does not disclose that the plaintiff Sacket has any interest in the subject matter of the litigation, or that either of these witnesses possesses any information pertinent to the matter in issue. We are not concerned here with a complaint (affidavit) which contains a general statement of the facts constituting the contempt (State ex rel. Webb v. District Court, 37 Mont. 191, 15 Ann. Cas. 743, 95 Pac. 593), but with one which fails to charge a contempt either generally or otherwise. It was the contention of these witnesses, at the time they were sworn, that the complaint in the civil action not only does not state a cause of action, but discloses that the plaintiff does not have a cause of action against the defendants who have appeared, or, in other words, that the complaint cannot be amended to state a cause of action against them. If this contention is well founded, it follows that these witnesses are not guilty of the contempt charged against them, and, in the absence of any statement as to the nature or character of the action, the trial court could not determine whether they should or should not have been required to give their testimony. The complaint (affidavit) does not state facts sufficient to constitute contempt, and the trial court exceeded its jurisdiction in trying the witnesses and adjudging them guilty. (Crawford v. Piersc, 56 Mont. 371, 185 Pac. 315; Overend v. Superior Court, 131 Cal. 280, 63 Pac. 372; Hutton v. Superior Court, 147 Cal. 156, 81 Pac. 409.) *306 Rehearing denied May 21, 1925. In the brief presented on behalf of the witnesses complaint is made of the very sweeping character of a subpoena, duces tecum which was issued and served, but this record does not disclose whether that writ was obeyed. It does not appear to have been considered in the contempt proceeding, at least the witnesses were not adjudged guilty for a failure to comply with it, but for their failure to testify. We deem it unnecessary to pass upon the question sought to be raised concerning it, but call attention to the comment made by the supreme court. of the United States in Federad Trade Commission v. American Tobacco Co., 264 U. S. 298, 68 L. Ed. 696, 32 A. L. R. 786, 44 Sup. Ct. Rep. 336.) The order adjudging the witnesses guilty of contempt is annulled. Order annulled. Mr. Chief Justice Callaway and Associate Justices Galen, Stark and Matthews concur.