State ex rel. Ozark Cooperage & Lumber Co. v. Wurdeman , 176 Mo. App. 540 ( 1913 )

NORTON!, J.

Thisi s an original proceeding in prohibition. From the preliminary writ and the respondent’s return thereto, it appears there is no controversy touching the facts.

The respondent is judge of the circuit court of St. Louis county and presides in division No. 2 thereof. There is pending in that court the case of George W. Walker v. Frederick S. Charlot et al., wherein it is alleged that the plaintiff in that suit recovered a judgment -several years ago against the Ozark Cooperage Company; that Frederick B. Chariot and others named in the petition constituted the president and board of directors of that corporation; that such officers dissolved the corporation thereafter and organized another one under the same name—that is, the Ozark Cooperage Company—and paid for the capital stock of the succeeding corporation through turning over to it all of the assets of the prior one, against which plaintiff had recovered judgment; thpi.t such constituted a fraud on the rights of the plaintiff and that as the defendants in that suit had received the benefits of the fraud they should compensate his judgment theretofore recovered against the first corporation of which they were officers. It seems in the interim a third corporation has been organized and chartered under the laws of the State of New Jersey under the name of the Ozark Cooperage & Lumber Company, and it is this, corporation that is the relator here.

In connection with his suit against Chariot and others, George W. Walker, the plaintiff therein, sued out a subpoena duces tecum, directed to the third corporation and its officers—that is, the present relator— commanding it and such officials to bring into court divers and sundry books, papers, records, etc., to be used in evidence. Tbe relator thus summoned under tbe subpoena duces tecum is not a party to the suit above mentioned. Relator and its officers declined to comply with the command of the subpoena duces tecum and sued out the writ of prohibition against respondent on the grounds that the circuit court of St. Louis county was about to exceed its jurisdiction in enforcing compliance with such subpoena duces tecum, for that the petition for the subpoena duces tecum was indefinite, uncertain and insufficient to authorize the court to issue the subpoena.

The application for the subpoena duces tecum is, indeed, indefinite and in nowise purports to state the facts from which it could be ascertained by the court that the documents, books and papers sought to be adduced are in any wise pertinent or relevant to the issues in the case in which it was issued. Such application merely recites that those documents, books, papers, records, etc., “constitute material evidence toi the plaintiff’s cause and it is necessary to have the' same at the trial of said cause,” and this is the sum total of the recital touching that matter. The law is well settled that to entitle a party to a subpoena duces tecum requiring a witness not a party to the action, as here, to produce books and documents in his possession, it is not sufficient to allege merely the documents are material and relevant to the issues in the case, but the facts that will enable the court to determine that they are prima-facie material and relevant must be set out. [See United States v. Terminal R. R. Ass’n, 154 Fed. 268; see also a judgment of our Supreme Court reflecting the same rule of decision in'the case of State ex inf. Crow v. Continental Tobacco Co., 177 Mo. 1, 43, 75 S. W. 737. See, also, Ex parte Brown, 72 Mo. 83.]

The petition for the subpoena duces tecum is obviously insufficient and it appears that the court declined to quash it on a motion to do so. Moreover, from respondent’s return, it appears that no evidence was introduced at the hearing of the motion to quash the subpoena revealing a state of facts from which the court could determine the relevancy and materiality of the evidence sought to be thus brought into court. This being true, any subsequent proceeding to enforce obedience to the subpoena duces tecum would, of course, exceed the power of the court in that behalf, and prohibition will lie. [See People v. Dunning, 113 N. Y. App. Div. 35; 98 N. Y. Supp. 1067; 32 Cyc. 622; see, also, Ex parte Brown, 72 Mo. 83; United States v. Terminal R. Assn., 154 Fed. 268.]

The preliminary rule in prohibition should, therefore, be made absolute but without costs. [See State ex rel. v. Nixon, 232 Mo. 98, 133 S. W. 336.] It is so-ordered.

Reynolds, P. J., and Allen, J., concur.