Opinion
37771.
DECIDED JULY 14, 1959.
Contempt. Fulton Superior Court. Before Judge Shaw. April 13, 1959.
William Hall, Moise, Post Gardner, Allen Post, for plaintiff in error.
Paul Webb, Solicitor-General, A. Paul Cadenhead, Eugene L. Tiller, contra.
1. An application for attachment for contempt of court by the solicitor-general of a judicial circuit, alleging that there was pending before the Fulton County grand jury a proposed indictment charging one J. W. Brinson, Jr., with felony; that a subpoena duces tecum addressed to a named corporation was served on its general manager ordering him to produce certain documents before said grand jury, and that the defendant, by ordering said manager to deliver the documents to him in lieu of the witness producing them interfered with the due process of the courts and the administration of justice, is not subject to general demurrer.
2. Where it appears on the trial of the issue that identical subpoenas directed to the corporation were served upon the president in control of the corporation and an employee having actual custody of the papers, it was perfectly proper for the president to demand and acquire custody of the documents from his employee for the purpose of producing them in compliance with the subpoena served upon him as such president. Nor did it constitute a contempt of court that the defendant, before complying with the subpoena, saw fit to test its sufficiency by means of a motion to quash, since he did in fact, upon obtaining a ruling by the court adverse to his contentions, surrender the documents called for by the subpoena.
DECIDED JULY 14, 1959.
The Solicitor-General of the Atlanta Judicial Circuit filed an application for attachment for contempt of court against H. Candler Jones on April 7, 1959, alleging that there is pending before the Fulton County grand jury a proposed indictment charging J. W. Brinson, Jr., with the offense of felony; that on April 1, 1959, a subpoena duces tecum addressed to Quality Supply Company, Inc., was served upon its general manager Hugh A. Miller; that Miller had said records available to produce before the grand jury on April 7, and would have produced same but for the defendant's interference in that the latter, on the evening of April 6, approached Miller and ordered him to deliver the records to the defendant; that previously on March 27, 1959, defendant had been served with a subpoena duces tecum (the contents of which is not alleged) and moved to quash the same on grounds based upon his constitutional privilege against forced self-incrimination; that defendant's demand to Miller to deliver to him the records in lieu of that witness producing them before the grand jury was an interference with due process of the courts and the administration of justice, and constitutes a contempt of court. A demurrer to the application was filed on the ground that the allegations are insufficient to authorize an adjudication that the defendant is guilty of a contempt. The demurrer was overruled, and, after hearing, the respondent adjudged in contempt. These rulings are assigned as error.
1. (a) In Wilson v. United States, 221 U.S. 361, 374 ( 31 S. Ct. 538, 55 L. Ed. 771) it is stated: "Where the documents of a corporation are sought the practice has been to subpoena the officer who has them in his custody. But there would seem to be no reason why the subpoena duces tecum should not be directed to the corporation itself. Corporate existence implies amenability to legal process. . . Possessing the privileges of a legal entity, and having records, books and papers, it is under a duty to produce them when they may properly be required in the administration of justice." Code § 22-101 specifies that a corporation is an artificial person created by law for specific purposes. Code § 38-901 provides as follows: "When any deed, writing, or other document which it may be necessary to use as evidence in any cause may be in the possession of any person resident in this State who is not a party to the cause, the clerk of the court, or justice of the peace, in which the cause is pending, shall, upon application of the party or his attorney desirous of using such testimony, issue a subpoena duces tecum, directed to the person having such book or other document in his possession, requiring him to appear and bring with him into court the paper desired to be used as testimony." It was accordingly proper in this case to issue a subpoena directed simply to "Quality Supply Company, Inc." and to have it served upon Hugh A. Miller, general manager of such corporation. The documents called for being in the possession of Mr. Miller at the time, it was his duty to respond to the subpoena duces tecum and produce them before the Fulton County grand jury on April 7, 1959, unless he desired to test the validity and sufficiency of the subpoena duces tecum by legal means.
(b) This being the case, as alleged in the citation for contempt, interference by a third party in ordering Mr. Miller to turn the documents over to him for the purpose of concealing, destroying, or otherwise withholding the information therein contained from the grand jury would be an act of contempt which the court would be well authorized to punish. The case made by the allegations of the petition for attachment for contempt puts it under the rule of Evans v. State, 69 Ga. App. 178 ( 24 S.E.2d 861). There certain corporate records were called for in a subpoena duces tecum which was served upon the person who had the documents in her possession and who was the bookkeeper and a partner of the corporations involved. While she was out of the office, and before she had responded to the subpoena, two other persons concerned in the corporation without her knowledge or consent removed and sequestered the documents so that they were unavailable for production. This was held to be a contempt which the trial court was well within its rights in punishing. The same situation appears here, from the allegations of the citation, and the court did not err in overruling the general demurrer. The allegations that the defendant had previously been served with some other subpoena duces tecum the contents of which is not disclosed, and that he had resisted the same, adds nothing to the petition here and must be treated as surplusage.
2. However, on the hearing the evidence showed without dispute the following: Quality Supply Company, Inc., is a small corporation; Hugh A. Miller is generally in charge of its affairs, but the defendant Jones is the president and owner and Miller is subject to his direction and control; a subpoena duces tecum was prepared in duplicate addressed merely to Quality Supply Company, Inc., calling for the production of the identical records on the identical hearing at the identical date; the original subpoena was served on Jones as president and the copy was served upon Miller. The papers were accordingly in the actual possession of Miller but in the constructive possession of Jones. Each man had an equal obligation to produce the papers, and so long as they were produced by either, neither could be penalized for a failure to produce them. Jones went to Miller's home on the evening before the hearing and stated to him that he was the president and person in charge of the corporation and would take the papers as he was the one to present them. Jones did appear before the grand jury with the documents in question and made a motion to quash the subpoena duces tecum on grounds of self-crimination. On April 9, the court set the motion to quash for hearing, the order containing the following: "In the meantime and until further order of the court, movant is relieved from complying with said subpoena duces tecum and accompanying order." On April 13, 1959, the motion to quash was denied, the contempt hearing held, the defendant adjudged in contempt of court, and the documents actually turned over to the court on the same day.
It thus appears from the evidence that the defendant had a good defense to the contempt citation. He was not, as was Evans ( 69 Ga. App. 178, supra), an interloper who interfered and sequestered records, but the president and owner of the corporation to which the subpoena was directed, and a person upon whom it had been served. He was at least equally with Miller responsible for the production of the records before the grand jury. He had a right absolutely equal with Miller under these conditions to their possession. He also had the right which is given by our laws to every litigant and every witness in every judicial matter pending within this State to test the legality of an order of court calling upon him to do something — in this case, to produce documents of a corporation of which he was the president and alter ego. He invoked a ruling of the court as to whether his personal plea of self-incrimination would avail, the records being those of the corporation and not personal to him, and, upon the court ruling against him, he surrendered the documents. To deny a litigant or witness the right, on pain of punishment for contempt, to test the sufficiency of the process would be contrary to every known principle of jurisprudence. The State, having served Jones with a subpoena duces tecum, cannot complain that he procured the records, even though from another whose duty it also was to produce them, nor can it complain that, having done so, he filed a motion to quash the subpoena and awaited a ruling of the court thereon before complying. As a matter of fact, the rule nisi itself authorized him to await the decision of the court before taking further action in the matter. "No man is a trespasser for doing an act which the law makes it his duty to do." Williams v. Inman, 1 Ga. App. 321, 324 ( 57 S.E. 1009).
The trial court did not err in overruling the demurrer to the petition, but erred in adjudging the defendant in contempt of court.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.