State ex rel. King v. Turpin

CRIST, Judge. Original proceeding in prohibition. Preliminary writ of prohibition made absolute. Relator Virginia King, defendant in the case of Dettie White, et al. v. Virginia King, complains that the respondent erred in ruling that she could not depose a witness after the case was set for trial because of Rule 6 of the Eleventh Judicial Circuit Court Rules. We agree. On August 7, 1978, relator obtained a trial setting for October 16, 17, and 18, 1978. On August 21, 1978, she served no [930] tice to take the deposition of Dr. Burd in Nashville, Tennessee on September 7, 1978. Thereafter, on September 11, 1978, she served a new notice to take the deposition on September 18, 1978. Plaintiffs filed their motion for protective order. Respondent sustained the motion “for failure [of] defendant to comply with Rule 6 of this Court.” Essentially, in order to get a case on the trial docket of the Circuit Court of St. Charles County, Missouri, a party to the action must, pursuant to local Rule 6, file a certificate of readiness with the Clerk of the Circuit Court of St. Charles County wherein it is stated that all discovery has been completed on behalf of the applicant for trial setting, and a copy thereof must be mailed to all other attorneys of record pursuant to Rule 6(3)(a). Under the terms of said Rule 6 any litigant not a party to the application for trial setting may apply for additional time to complete discovery. Rule 56.01(a) provides that discovery shall not be limited “[ujnless the court orders otherwise under subdivision (c) of this Rule, . . . ” Subdivision (c) deals with protective orders. Local court rules cannot arbitrarily infringe upon the right of a party to take a deposition. Respondent’s interpretation of Rule 6 does just that — no discovery after you have filed a certificate of readiness. The right to take a deposition is absolute excepting as provided in Rule 56.-01. Norkunas v. Norkunas, 480 S.W.2d 92, 94 (Mo.App.1972); State ex rel. Chandler v. Scott, 427 S.W.2d 759, 762 (Mo.App.1968); and State ex rel. Houser v. Goodman, 406 S.W.2d 121, 125 (Mo.App.1966). Rule 50.01 permits circuit courts to make rules governing judicial business, but it does not permit those courts to make rules contrary to the rules of the Supreme Court. Cf. Wade v. Wade, 395 S.W.2d 515 (Mo.App.1965) (construing a St. Louis County Circuit Court Rule to be in conflict with Rule 43.01(a)). Respondent’s interpretation of Rule 6 unduly restricted the right to take depositions, contrary to Rule 56.01. Our preliminary writ of prohibition is made absolute. REINHARD, P. J., dissents in separate opinion. GUNN, J., concurs in result only and in separate concurring opinion.