Hanson v. Sward

The opinion of the court was delivered by Johnston, C. J.: This was an action brought by the appellant, John F. Hanson, to recover $50,100 as damages for alleged false imprisonment. It was brought against the appellees, Swen A. Sward, the probate j udge of McPherson county, and the three sureties upon his official bond, O. Emil Gustafson, the sheriff, and the twenty sureties upon his official bond, John Ekblad, who was the administrator of the Hannah Linderholm estate, and his attorney, Frank O. Johnson. In the petition the appellant alleged that he was subpoenaed as a witness in behalf of the administrator of the Linderholm estate in a controversy wherein Anton Linderholm and others had presented claims against the estate, and to bring with him books of account, receipts for payments, checks and other evidences of the payment of money to Anton Linderholm, Emil E. Linderholm, Justus Linderholm and Ida A. Tarnstrom, and also all papers, notes or accounts showing the transactions had or made by Hannah Linderholm while she was acting as the administratrix of the estate of Swan Linderholm, deceased. It was alleged that in answer to the subpoena appellant appeared before the probate court, and after affirmation he was asked a question pertaining to the claims filed against the estate by Anton Linderholm which he declined to answer, saying that the question did not pertain to the controversy upon which he had been subpoenaed to testify. The probate court then ruled that the appellant must answer the question but he asserted that the court had no, [3] jurisdiction to require him to ánswer, and still refusing he was held to be in contempt of court and it was adjudged that he should pay a fine of $25 and stand committed until the fine should be paid and the question answered. It was further averred that under this order the appellant was committed to the county jail by the sheriff, that afterwards he was released on a bond given pending a hearing on a writ of habeas corpus before the supreme court, and that subsequently that court remanded him to custody and he was held in jail for a period of about eight months, when he was released. He further alleged that the contempt proceedings were void and his punishment illegal because the probate court had no jurisdiction to compel him to testify in the proceedings before it; that Ekblad, who was moving in the proceedings, was not next of kin to the deceased and was therefore not legally appointed administrator; that the order of commitment was void because it did not state the extenuations offered by the appellant nor comply with the code provisions relating to punishment for contempt. A demurrer to the petition was sustained and appellant complains of the ruling. Most of the questions raised on this appeal have already been determined adversely to appellant’s contention. It was decided in habeas corpus proceedings and upon similar averments that it was the duty of appellant-to answer the question propounded to him in the probate court. (In re Hanson, 80 Kan. 783, 105 Pac. 694; In re Hanson, 81 Kan. 608, 106 Pac. 276.) The allegations of appellant’s petition indicate that the question was relevant and, besides, the probate-court which had jurisdiction of the case determined that the question asked was pertinent and proper. Being vested with jurisdiction of the subject matter and of the person the relevancy of the inquiry was a question to be determined by the court and not by the witness. It has also been determined that the probata [4] court had the power to make the particular order that was made. (In re Hanson, 80 Kan. 783, 105 Pac. 694.) On a hairsplitting theory as to the propriety of the question asked, which was utterly untenable, the appellant persisted in his contumacy and hence was held in jail for a long time. However, he could have secured his release at any time by answering a few simple questions, which he now says he would willingly have answered if they had been asked in a different way. He was held in custody not alone as punishment fox-contumacy in willfully disobeying a lawful order of the court, but also to compel obedience to an order which the court had a right to make and which was deemed necessary to the administration of justice. While the imprisonment was long the court had the power to continue the commitment of appellant as long as his contumacy continued. As was well remarked by Mr. Justice Graves in the habeas corpus proceeding: “If courts were limited in their power to enforce proper orders, as urged here, contumacious witnesses could effectually impede and embarrass them to such an extent as practically to prevent the administration of justice.” (In re Hanson, 80 Kan. 783, 787, 105 Pac. 694.) There is nothing substantial in the claim of appellant that the imprisonment was illegal because Ekblad, who was appointed administrator, was not next of kin to Hannah Linderholm, deceased. The probate court had authority to appoint an administrator, and even if the wrong person was appointed his appointment would be valid until it was set aside in a proceeding brought for that purpose. Letters of administration are not open to collateral attack such as appellant is attempting to make. This was determined in Ekblad, Adm’r, v. Hanson, 85 Kan. 541, 117 Pac. 1028. (See, also, Taylor v. Hosick, Adm’r, &c., 13 Kan. 518; Brubaker v. Jones, 23 Kan. 411.) [5] Some other questions have been discussed by appellant but all not specifically mentioned here have, like those mentioned, been considered and decided in earlier cases brought in or to this court by appellant. The appellant did not state a cause of action against any of the appellees and the ruling of the district court sustaining the demurrer to his petition must be affirmed.