Opinion
Decided March 2, 1934.
Evidence — Deposition by notary public — Witness in contempt for refusal to answer question — Commitment need not show question relevant or material — Refusal to answer not justified on ground deposition not to be filed.
1. Where, in the taking of a deposition by a notary public, a witness is committed to jail for contempt for refusing to answer a question propounded to him, the fact that such commitment does not set forth information showing that such question is relevant or material to the issues in the case in which the deposition is being taken does not render such commitment invalid.
2. The fact that the party taking depositions does not intend to file them in court does not justify the opposing party, who is being cross-examined as a witness, in refusing to answer a question which is relevant and material and relates to the case of the party taking the depositions and not exclusively to the adverse party's case.
ERROR: Court of Appeals for Summit county.
Messrs. Howell, Roberts Duncan and Messrs. Motz Morris, for Walter F. Grosswiller.
Messrs. Waters, Andress, Wise, Roetzel Maxon, for Ethel E. Hallett, Administratrix.
Walter F. Grosswiller filed a petition in the Common Pleas Court of Summit county for a writ of habeas corpus, representing that he was unlawfully restrained of his liberty and imprisoned by the sheriff of Summit county without any legal authority, but under the color of a pretended commitment, a copy of which was attached to the petition.
Hon. A.W. Doyle, one of the judges of said court, granted said writ, which was duly served upon said sheriff, and the sheriff made due return thereof and attached thereto said order of commitment, which is in the words and figures following:
"Whereas, on the 15th day of August, 1933, in a certain action numbered 99,423, then and still pending in the Court of Common Pleas of said Summit County, wherein Ethel E. Hallett as administratrix of the estate of Frank G. Hallett, deceased, is plaintiff, and Walter F. Grosswiller is defendant, the undersigned Marguerite M. Herz, a notary public in and for said county of Summit, at room 1110 First-Central Trust Building in said county, and at the request of said plaintiff and on her behalf, pursuant to notice theretofore served in compliance with the statutes of the state of Ohio, was taking the deposition of the defendant, Walter F. Grosswiller, in said action, under the statute in such case made and provided, said Walter F. Grosswiller having appeared as a witness and having been duly sworn and examined as on the cross-examination, and upon his said examination as a witness and while his deposition was then and there being taken and for the purpose of making the answers to the same a part of his said deposition, the following questions were put to him by the attorney for the plaintiff, to wit:
"Q. Now did you try to repair this yourself in the garage?
"A. No, the only thing I did was bend the blade a little bit, that's all.
"Q. And you didn't check the contacts on your wiring?
"A. No, sir.
"Q. Where did you take the car later?
"A. I took it home.
"Q. Without lights?
"A. I had to.
"Q. And when did you have the lights repaired?
"A. I think the next day.
"Q. Where did you have it done?
"And the said Walter F. Grosswiller then and there refused to answer the question last mentioned, and thereupon the undersigned ordered the said Walter F. Grosswiller to answer said question, which he again refused to do, and thereupon, the undersigned having elected to seek the advice of one of the judges of the Court of Common Pleas of said county, requested and ordered the defendant to accompany her to the court room of the Honorable Walter B. Wanamaker, presiding judge of the Court of Common Pleas of said Summit County, which said witness then and there refused to do; and thereupon said taking of the deposition was by the undersigned ordered continued until the 17th day of August, 1933, at 10 a.m., at the same place aforementioned, and thereafter, to wit, at said time and place, Walter F. Grosswiller again appeared as a witness with his counsel, and the following question was propounded to the witness:
"Q. Where did you have it done?
"And said witness then and there refused to answer said question without claiming any question of personal privilege, and thereupon the undersigned ordered said Walter F. Grosswiller to answer said question, which he again refused to do, and thereupon the undersigned adjourned the further taking of said deposition to the court room of said Honorable Walter B. Wanamaker and requested and ordered said witness to appear for further examination at 10:30 a.m. on said August 17, 1933, which said Walter F. Grosswiller then and there refused to do; whereupon the undersigned notified the defendant that the taking of said deposition would be further continued at the same place until 11 a.m. on said 17th day of August, 1933, and said Walter F. Grosswiller did not then and there appear as he was requested to do; and thereupon the undersigned adjourned the further taking of said deposition to the 18th day of August, 1933, at 1:15 p.m. and notified the counsel of record for said defendant witness that the taking of said deposition would go forward at said time in the court room of said Honorable Walter B. Wanamaker at the Court House, Akron, and personally served the said defendant Walter F. Grosswiller with a subpoena specifically requiring his attendance as a witness at the time and place last mentioned; and thereupon on said 18th day of August, 1933, at 1:15 p.m., said Walter F. Grosswiller refused to appear in answer to the subpoena theretofore issued and refused to subject himself to further examination, including an answer to the question above stated; and the undersigned then and there for said contempt of said Walter F. Grosswiller in so refusing to answer said question and to obey the subpoena which required his attendance as a witness on said 18th day of August, 1933, at 1:15 p.m., ordered and adjudged that said Grosswiller be imprisoned in the county jail of said county of Summit until he submit to testify in the premises and make answer to the question propounded.
"You are therefore ordered to arrest and commit the body of said Walter F. Grosswiller to the jail of said county of Summit, there to remain until he shall submit to testify as aforesaid, and of this order make legal service and due return.
"Given under my hand and offered seal this 18th day of August, 1933.
"Marguerite M. Herz, "Notary Public as aforesaid."
The matter came on to be heard before said judge of said court, and counsel for Grosswiller informed the court that said petition in habeas corpus, while general in form, was based upon two specific claims, as follows: (1) That the order of commitment did not show that there was any authority in the sheriff to hold Mr. Grosswiller, nor did it show any authority on the part of the notary to commit Mr. Grosswiller for contempt; and (2) that, if the court should hold that the order on its face was legally sufficient, "we then would want to go a step further and offer proof of facts showing that there was no real deposition to be taken, therefore no right to commit for contempt."
The cause was determined upon the statements of counsel, no testimony being taken.
From said statements of counsel we learn that the deposition of Grosswiller was being taken in an action against him to recover damages for wrongful death, and upon due notice; that said defendant appeared and was sworn, and was being examined "as if under cross-examination" (Section 11497, General Code); that he refused to answer as set forth in said commitment; and that the proceedings were conducted in all respects as set forth in said commitment. While said commitment recites that the notary public ordered and adjudged that the defendant be imprisoned in the county jail "for said contempt of said Walter F. Grosswiller in so refusing to answer said question and to obey the subpoena which required his attendance as a witness on said 18th day of August, 1933", it is conceded that the commitment should be considered only as a commitment for refusing to answer said question.
It is claimed that the commitment is invalid because it does not contain a finding of the notary that said witness was in contempt; but, when consideration is given to the whole of the commitment, and especially the language last hereinbefore quoted, we hold that it sufficiently appears that the notary declared said witness to be in contempt.
The next point made in this court is that the commitment is materially defective on its face, because it "does not set forth any facts from which the court can determine whether the question involved had any relevancy or was material to the issues in the case in which the deposition was taken."
The statute provides that a notary public may commit a witness to jail for "an unlawful refusal to answer as a witness." Section 11510, General Code. The statute also provides that said commitment "must be under seal of the court, or official seal of the officer, if he has one, and must particularly specify the cause of the arrest or commitment. When committed for a refusal to answer a question, the question must be stated in the order." Section 11515, General Code.
We find no specific provision of the statute, and we know of no principle of law, which requires that the relevancy of the questions asked be made to appear on the face of the commitment. The question of relevancy cannot be tried before the notary public, for he is not empowered to pass upon that matter.
The question of competency is usually a matter for the determination of the court on the trial of the action (De Camp v. Archibald, 50 Ohio St. 618, 35 N.E. 1056, 40 Am. St. Rep., 692), but, where the witness whose deposition is being taken refuses to answer because the question is not relevant, and is imprisoned for contempt, he may have that question determined by proceedings under Section 11514, General Code, or he may have it passed upon by the court in a habeas corpus proceeding.
The purpose of a writ of habeas corpus is "to inquire into the cause of such imprisonment." Section 12161, General Code.
"If it appears that the prisoner is in custody under a * * * commitment in pursuance of law, the return shall be prima facie evidence of the cause of detention * * *." Section 12180, General Code.
It is apparent that the court determines whether the commitment is "in pursuance of law" by an examination of the "order to commit a witness to prison", which is specified in Section 11515, General Code, and which is required to be copied in the officer's return by Section 12174, General Code.
What that order and commitment shall contain is provided, as has been said, by Section 11515, General Code, and, if the judge determines that the commitment is regular and in pursuance of law, the imprisonment is prima facie lawful; but in habeas corpus the imprisoned party may produce evidence to show that the imprisonment is unlawful, such as that the question he was ordered to answer was incompetent and not relevant to the issues in the cause in which the deposition was taken; but, as has been said, the notary cannot pass upon that question. The witness must determine that question for himself, and, if he decides wrongly, he must suffer the consequences. In re Rauh, 65 Ohio St. 128, 61 N.E. 701.
While, in a habeas corpus proceeding, the witness may have that question determined, he must produce evidence which will enable the court to determine it, and we do not think he has any right to expect or require that such evidence be produced before the notary or made a part of the commitment.
While the party asking the question probably could have had attached to the deposition copies of the pleadings, which would have exhibited the nature of the action and the issues thereof, we know of no good reason for requiring that to be done nor for requiring such facts to appear in the commitment. On the hearing in habeas corpus, such facts, together with all of the examination of the witness, as shown by the deposition, which was pertinent, could have been shown to the court for the purpose of enabling the court to determine whether the question which the witness refused to answer was relevant; and the rights of the witness were fully protected, and in no way invaded, when he was afforded an opportunity to have the court that is empowered to pass on the issue as to his right to refuse to answer fully informed in reference thereto.
In the habeas corpus case he did not offer any evidence at all upon that matter, and there is nothing in the record to show that said question was not relevant and proper; so far as that matter is concerned, the commitment was sufficient in law, and the witness cannot now complain that the trial court erred in refusing to find that he was justified in refusing to answer said question because it was not relevant.
It is also claimed that depositions were not in fact being taken because counsel did not intend to file the same in the action in which they were ostensibly being taken.
At the taking of the deposition there was nothing said on the subject of whether the party taking it intended to file the same, and no admissions were made which in any way indicated that the party taking the deposition was merely seeking information as to his adversary's case, or using the machinery of the law to annoy and injure such adversary, or that he was not acting in good faith.
The colloquy between counsel was in reference to the propriety of having the deposition taken by a notary who was a stenographer in the office of one of the attorneys, said attorney offering to follow the custom and furnish opposing counsel a copy of the deposition without expense to him, but he insisted upon the deposition being taken by another notary, and that was done.
It is true that, at the habeas corpus hearing, counsel taking the deposition stated that it was not his intention to file the deposition, but that he was at liberty to do so at any time he saw fit, and that he did intend to transcribe the deposition and furnish opposing counsel a copy.
That statement was made long after the taking of the deposition, and it is not claimed that the refusal of the witness to answer was because the deposition was not to be filed. If that had been the case, the witness would not have been justified in refusing to answer. 14 Ohio Jurisprudence, "Depositions," Section 6, page 11.
The right to take depositions does not depend upon the right to use them (In re Rauh, supra, at page 135), and, if the notary's fees are paid, it is his duty to file depositions in the court where the action or proceeding is pending (Section 11538, General Code), and the adverse party, who was the witness in this case, could have compelled the notary to file said depositions (Ex parte Thayer, 114 Ohio St. 194, 150 N.E. 735).
Our conclusion is that the fact, if it be a fact, that the party taking depositions does not intend to file them in court, does not justify the opposing party who is being cross examined as a witness in refusing to answer a question which is relevant and material and relates to the case of the party taking the depositions and not exclusively to the adverse party's case. Such holding is within the spirit of Ex parte Bevan, 126 Ohio St. 126, 184 N.E. 393.
On the record in the case at bar, we find that the trial court did not err in ruling that the petitioner was not unlawfully restrained of his liberty.
Judgment affirmed.
FUNK and STEVENS, JJ., concur.