State ex rel. Whitcomb v. Seaton

Adams, J. — The record discloses the following facts: The relator, C. II. Whitcomb, brought an action in replevin in the district court of Linn county, against Gray & Beebe, to recover certain property levied upon by the sheriff of Linn county, under an execution issued upon a judgment in favor of Gray & Beebe, and against one Jaquith. It appears that the issues in that case involved the question of the ownership of the property, the question being as to whether it belonged to the relator in this case, or to Jaquith. While the action of replevin was pending, the defendants therein, Gray & Beebe, filed a petition with J. M. Gray, a justice of the peace of Linn county, who is the husband. of Gray, one of the defendants in the action of replevin, reciting the pend-ency of that action, and alleging o“that the petitioners, in order to prepare their answer as defendants, and properly prepare their defense in said action, desire the answer under oath of said O. II. Whitcomb to the following questions, and also answers to such further questions as such answers may suggest.” Eighteen questions are given, which Whit-comb is desired to answer. They relate to his owner [565] ship of the property, his alleged purchase and payment, the manner in which he conducted his business, and other matters which would probably be admissible in evidence in an action wherein the title of property would be questioned on the ground of fraud. The petition was amended so as to show that it was intended by petitioners “for the further purpose of determing whether to abandon their defense or prosecute the same in the action in the district court, wherein the said O. H. Whitcomb is plaintiff and your petitioners are defendants, and, perhaps, to use the same as testimony in the trial of said cause.” Upon the petition the justice of the peace issued a subpoena requiring Whitcomb to appear before him and “make his affidavit or give his deposition,” as required in the petition. On the return day of the subpoena, Whitcomb appeared and made objections to the proceedings on the following grounds: “1. The justice of the peace is the husband of one of the parties to the action, who make and file the petition. “2. It is not shown that any attempt has been made to procure Whitcomb’s affidavit, or that he has refused to give it. “3. The petition shows that the affidavit is required for a purpose unknown to the law. “4. The justice has no jurisdiction of the subject matter of the petition.” These objections were overruled, as well as an application for a change of venue, on the ground of the relation which the justice sustained to one of the parties, and an application for an adjournment of the case to a future day. Whit-comb refused to be sworn and give his affidavit or deposition as sought in the petition, and thereupon the justice held that he was in contempt, and ordered him to be committed to the jail of the county “until he should submit to be sworn and testify.” A 1mttimus was issued upon this order, whereon Whitcomb was committed to the custody of the defendant, the sheriff of the county, and lodged in jail. The legality of this imprisonment is presented for our determination upon [566] the record before us. We cannot, in a habeas corpus proceeding, review the order of imprisonment for contempt, and reverse, unless the act constituting the alleged contempt was such that we can pronounce as a matter of law that it was not a contempt. If, for instance, the justice had no authority to subpoena this plaintiff, and was acting without jurisdiction in doing so, then what he did was done merely as an individual, and whatever contempt there was, if it could be called such, not being for judicial authority, -would not be such as the law recognizes and punishes. The relator claims that such is precisely this case. Whether he is correct depends upon the' construction which should be put upon those sections of the Code under which the justice undertook to act. Those sections, 3692 and 3693, are in these words: “When any person is desirous of obtaining the affidavit of another who is unwilling to make the same fully, he may apply to any officer competent to take depositions, as herein declared, by petition, stating the object for which he desires the affidavit. If such officer is satisfied that the object is legal and proper, he shall issue his subpoma to bring the witness before him,” etc. The foregoing provisions are contained under the “title of Evidence,” and the plaintiff insists that they can have no application where it appears upon the face of the petition filed with the justice, as he says it does in this case, that the affidavit, if obtained, cannot be used as evidence. He urges upon our consideration the great and irreparable injury that might be done to individuals, if they could be made to disclose, under the form of an affidavit, all kinds of information, not proper as evidence in any matter, provided only some justice of the peace could be made to think that it was legal and proper, and whose error could be corrected only after all the injury had been done. Without denying that there is considerable force in this position, we have to say that it appears to us that the question is not an open one. If it were, the writer is in great doubt whether he would not be inclined to hold the plaintiff’s position correct. But we [567] are not able to see how we could so hold now, without substantially overruling Robb v. McDonald, 29 Iowa, 330. It is true, it was not distinctly held in that case that the affidavit sought was useless in a legal point of view. But the decision is not less authoritative in the case at bar; because it was distinctly held that it was immaterial whether it was useless or not. The ruling is that the justice has fnll power to pass on the question of the legality and propriety of the affidavit sought, and was not without jurisdiction to issue the subposna, though, as a matter of law, it appeared upon the face of the petition for the affidavit that it could not, when taken, have any legal use. That decision has stood for many years, and commitments have doubtless been made under it which would render the parties committing liable for false imprisonment, if the section does not express the law, and if the law is as the plaintiff contends. Having reached the conclusion that the justice was not without jurisdiction in issuing the subpoena, and that there was a contempt in fact, we think that this disposes of the case, and that the other errors complained of are not of such a character that relief can be afforded in a proceeding of habeas corpus. "We think that the decision and order of Mr. Justice Rothrock must be Affirmed.