Stephens v. Liquid Carbonic Co. , 36 Ga. App. 363 ( 1927 )

Jenkins, P. J.

(After stating the foregoing facts.) If the proceeding had been one to take interrogatories under section 5886 of the Civil Code of 1910, or to take depositions before a notary under section 5905, the contentions of the defendant might have been urged with a degree of force, on the theory that any such proceeding to take his testimony was illegal, and he should not be held in contempt for refusing to obey an unauthorized mandate of the court. It has been held that it is not contempt of court for a witness who is being examined by interrogatories to refuse to answer illegal or impertinent questions which would not be admissible on the trial in court. Fenn v. Georgia Ry. & Elec. Co., 122 Ga. 280 (50 S. E. 103). The proceeding to take the evidence of the defendant was not, however, based upon the provisions for interrogatories as outlined by section 5886, nor was it a proceeding to take depositions before a notary under section 5905, but it was a proceeding to take depositions before a court commissioner, as provided by section 5910 of the Civil Code. In such a proceeding the right to take evidence does not seem to be limited as in the case of interrogatories, or as in the case of depositions before a notary public upder section 5905, but the statute here resorted to specifically provides that either party litigant may “take the depositions of any witness or witnesses in said case, whether resident in the county or not;” and the Supreme Court, in the case of Creech v. Ossep, 149 Ga. 577 (101 S. E. 576), held that “the word ‘witness’ as employed in the caption and the first section of the act approved December 20, 1898 (Acts 1898, p. 56), which amends section 5315 of the Code of 1895 (§ 5910 of the Code of 1910), relating to the taking of depositions, includes parties to an action who are competent and compellable to give evidence.” In the Creech case the defendant contended, as it is here contended, that the “plaintiff was seeking to discover from him as the defendant by depositions, which is not the legal way prescribed by law.” In the opinion in that case the Supreme Court said: “Two questions are raised for decision in this case. One is whether a party to a suit is a witness within the meaning of that term as used in section 5910 of the Civil Code, providing that either party litigant in any court of record in certain counties may take the depositions of a witness in the case. The term 'witness/ as here employed, the context being considered and the purposes of the act looked to, is broad enough to include any competent and compellable witness in any of the cases referred to in the statute who could be compelled to testify on the stand' on the trial of the case, or who could be compelled to answer interrogatories regularly sued out.” (Italics ours.) The proceeding being one for the taking of depositions before a court commissioner, and not being one for the taking of interrogatories, or for the taking of depositions before a notary public, and the defendant as a party being a competent witness who could be compelled to testify on the trial of the case, under the broad language of the statute resorted to and under the ruling of the Supreme Court in the Creech case, the judge did not err in overruling the contentions of the defendant in the contempt case.

The bill of exceptions makes the point “that the court was without jurisdiction to adjudge him in contempt, no questions being propounded to him before the commissioner.” This contention does not appear to have been set forth by the defendant’s answer to the rule for contempt, and apparently has been abandoned, as no reference is made to it in his brief, and there is no general insistence -upon all the grounds set forth in the bill of exceptions. Irrespective of this, however, the first paragraph of the defendant’s answer in the contempt proceeding sets forth that “defendant did appear before E. S. Baldwin, clerk of Laurens superior court and ex-officio commissioner to take testimony, and that defendant refused to testify in any manner not with any desire or intention to be disrespectful or in any wise being in contempt of this or any other court, but defendant failed and refused to answer any questions that might have been propounded to him by C. C. Crockett, attorney for plaintiff,” for the reasons thereinafter set forth, which have been already referred to. Since it appears that the defendant refused to submit himself to the jurisdiction and authority of the court, “to testify in any manner,” and “to answer any questions that might have been propounded to him,” it does not seem'that he could now insist that he should not be adjudged in contempt on •the theory that the questions which were to be propounded might perhaps have been irrelevant. If he had submitted to the mandate of the court, and had refused to answer any question actually irrelevant or impertinent, he could not, under the authority already cited, have .been adjudged in contempt, but where, as here, he notifies the commissioner in advance that he.refuses to “testify in any manner” or to “answer any questions,” it would be a futile thing to go through the procedure of interrogation to which the defendant has already refused to submit.

The judge having passed the following order: “Upon hearing the within rule, the same is made absolute, and the said T. P. Stephens is fined $25.00 for contempt of court, to be discharged on his appearing before the commissioner within fifteen days and answering depositions on notice being given by plaintiff, with supersedeas granted on filing of bill of exceptions,” and the bill of exceptions, under the terms of the order, having thus operated as a supersedeas, the status of the case upon its being here affirmed is that the defendant will become liable to the payment of the fine upon his failing to respond and answer after fifteen days notice from the plaintiff, subsequent to the making of the remittitur the judgment of the court below.

Judgment affirmed.

Bell, concurs.