Harwood v. German , 1892 Mo. App. LEXIS 131 ( 1892 )

Smith, P. J.

Plaintiffs as partners sued the defendant to recover certain commissions claimed to be due them for effecting the sale of real estate for defendant. The defendant’s answer was a general denial. While the cause was pending the plaintiff Harwood was duly subpoenaed to attend at a certain time and place before a notary public and give his deposition for the defendant. Plaintiff did attend, but, under the advice of his attorneys, refused to testify. There was some evidence, though of a very conflicting nature, tending to show an agreement between counsel as to the subsequent taking of Harwood’s deposition. The court, upon motion, struck out the petition as to the plaintiff Harwood and entered judgment accordingly, and from which this appeal is prosecuted. When a party has been duly subpoenaed as a witness to attend and testify before any person authorized to take his deposition, besides being punished himself as for contempt, his petition, answer or reply may be rejected. R. S., secs. 8920, 8924.

An examination of the evidence has not convinced us that the action of the court, under the circumstances, in rejecting the petition of the plaintiff Harwood, was a harsh or improper exercise of its discretion. Carr v. Dawes, 46 Mo. App. 351, 598; Haskell v. Sullivan, 31 Mo. 435; Snyder v. Raab, 40 Mo. 166.

And so the judgment must be affirmed.

All concur.