
    In re Julian S. Rauh. In re Thomas Miller. In re Herman Holjes.
    
      Deposition taken under Section 5265, Revised Statutes — Subpoena may include directions to witness to bring documents as evidence — Notary public may punish witness for contempt in disobeying such directions.
    
    1. A deposition may be taken at any time after service of summons upon the defendant in the action, but it can be used on the trial only in the cases prescribed in Revised Statutes, Section 5265; and the deposition of any witness, whether a party to the action or not, may be So taken.
    2. A subpoena issued by a notary public for a witness to attend and testify in a deposition before the notary public may contain a clause directing the witness to bring with him any book, writing or other thing under his control, which he may be compelled to produce as evidence, and for disobedience of such a subpoena the notary public has power to punish the witness for contempt, by imprisonment.
    (Decided October 22, 1901.)
    Error to the Circuit Court of Hamilton county.
    Habeas Corpus.
    An action ivas commenced in the superior court of Cincinnati by the German Dry Goods Company against Thomas Miller. The plaintiff, after service of summons, gave notice to take the depositions of the defendant Miller, of his confidential bookkeeper, Holjes, and of Rauh, a merchant with whom Miller had dealings, which depositions were to be taken before George D. Huston, a notary public in said county. Rauh was served with a subpoena duces tecum, issued by said notary, to produce the books of his business house showing the transactions with the defendant Miller, which he refused to do. Miller and Holjes, on the advice of counsel, refused to be sworn, Miller alleging the excuse that an adverse party could not be compelled to testify as an ordinary witness in advance of the trial, and Holjes that an ordinary witness could not be compelled to give his deposition unless some of the conditions prescribed in Revised Statutes, Sec. 5265, existed. Each of these witnesses was by the notary committed for contempt, and a writ of habeas corpus was issued in each case from the court of common pleas of Hamilton county. On the hearing the court of common pleas refused to discharge the prisoners and this judgment in each case, was afterwards affirmed by the circuit court. These proceedings in error are prosecuted by Rauh, Miller and Holjes respectively to reverse the said judgments of the circuit court.
    
      Charles W. Baker, attorney for petitioner in error.
    Section 5266, Rev. Stat. provides that —“Either party may commence taking testimony by deposition at any time after service upon the defendant.”
    Section 5265, Rev. Stat., provides that depositions may be used, when a witness does not reside in, or is absent from the county, when he is unable to attend court, when his testimony is required upon a motion, or where his oral testimony is .not required. Section 5281, Rev. Stat., provides that when a deposition is offered it must appear to the satisfaction of the court that for any of the causes specified above, the attendance of the witness cannot be procured, in order that said deposition may be used as evidence.
    If, then, a deposition could not be used, its taking would certainly be nothing less than an excursion for evidence, and not done in good faith. Pfirman, In 
      
      re., 1 Dec., 177; 1 N. P., 127; Thomas v. Beebe, 8 Dec., 231; 5 N. P., 32; Humphrey, In re, 7 Circ. Dec., 603; 14 C. C., 517; Langford, Ex parte, 9 Dec. (Re.) 597; 45 Bull., 267; Davis, In re, 38 Kans., 408 (16 Pac. Rep., 790); Cubberly, In re., 39 Kans., 291 (18 Pac. Rep., 173); Tyson v. Savings & Loan Ass’n (57 S. W. Rep., 740), 156 Mo., 588.
    It is submitted that a notary public has no power to compel, by subpoena duces tecum, the production of the books of account and papers of either a party'to a suit or a disinterested witness, for the purpose of examination or of taking copies.
    Section 5247, Rev. Stat., states what a subpoena may contain, when issued by a court. Section 5248 provides for. a subpoena by a notary or officer taking depositions, but not that a duces tecum clause may be added. Section 6537 authorizes subpoenas to be issued by justices of the peace, but not for the production of books and papers. Section 5290 provides that either party to the suit or his attorney may, in writing, demand an inspection and copy of books, papers or other documents in his possession relating to the merits of the controversy; and Sec. 5289, Rev. Stat., provides that a party may be compelled to produce boobs and writings on motion; but nowhere is it provided that such a demand may be made of a disinterested party or a party to a suit, except when called 'as a witness at the trial of the cause. Sims, In re, 4 Dec. (Re.), 473; 4 Bull., 457; 2 Clev. Rep., 210.
    
      Kramer x& Kramer, for respondent in error.
    These cases, present three distinct questions, viz. :
    ■ (1) Can a party to a suit compel an ordinary witness to give his deposition before a notary in advance of the trial when the same is taken in good faith and the examination is relevant, material and competent? (In re Holjes.)
    
    (2) Can a party compel the adverse party to give his deposition under like circumstances? (In re Miller.)
    (3) Has a notary the power to issue and compel obedience to the subpoena duces tecum against an ordinary witness under like circumstances? (In re Rauh.)
    
    The determination of these questions depends upon the.construction of various sections of our statutes.
    Section 118, Revised Statutes, authorizes a notary to administer oaths and to take and certify depositions. Section 119, Revised Statutes, provides that in taking depositions he shall have the same power to compel the attendance of witnesses, and to punish them for refusing to testify, which is in law vested in justices of the peace.
    Section 5261, Revised Statutes, confers the right to take depositions, and provides that the testimony of witnesses may be taken by affidavit, by deposition or by oral examination.
    Section 5266, Revised Statutes, provides that— “Either party may commence taking testimony by deposition at any time after service upon the defendant.”
    Section 5265 provides that “The deposition of a witness may be used only in the following cases:
    “1. When the witness does not reside in, or is absent from, the county where the action or proceeding is pending, or by change of venue, is sent for trial.
    “2. When the witness is dead, or, from age, infirmity, or imprisonment, is unable to attend court.
    “3. When the testimony is required upon a motion, or where the oral examination of the witness is not required.”
    
      It is important to note the sharp distinction made in the latter two sections. The right to take a deposition is provided by Sec. 5266, Revised Statutes, while the right to use a deposition, after it is taken, is restricted by Sec. 5265, Revised Statutes. We contend that Secs. 5261 and 5266, Revised Statutes, .confer the unrestricted right to parties to take depositions, that they may thus protect themselves against the contingencies mentioned in Sec. 5265, Revised Statutes. It is argued by adverse counsel that Sec-5265, Revised Statutes, must be read into Sec. 5266; that in spite of the fact that Sec. 5266 gives, in unequivocal terms, the unrestricted right to take depositions any time after service of summons upon the defendant, that the right to take does not arise until it is probable that one of the contingencies provided for in Sec. 5265 may arise. We claim that such a construction of a statute which is plain in terms is unsound, and would amount to judicial legislation.
    Section 5265, Revised Statutes, concerns the use of depositions as evidence. It addresses itself to the consideration of the court in admitting evidence at a trial.
    A notary is not such a judicial officer. DeCamp v. Archibald, 50 Ohio St., 618.
    Section 5266, Revised Statutes, in contrast to the preceding section is addressed to a non-judicial officer. If the construction claimed by adverse counsel be correct, then the unrestricted right conferred by the terms of the statute is to be construed to be a right dependent upon mere speculation as to the probable happenings of future events. A notary would need be a prophet as well as a ministerial officer. The statute was intended to provide against and not to depend upon the contingencies mentioned in Sec. 5265, Revised Statutes. Abeles, In re, 12 Kan., 451; Shaw v. Installation Co., 9 Dec. (Re.), 809; 17 Bull., 274; Meader v. Root, 5 Circ. Dec., 61; 11 C. C. R., 81; 76 Mo., 229.
    In short where the terms of the statute are clear and the statute is a remedial one, and therefore the liberal rules of construction are to be applied, it is not a sound interpretation of a statute to construe it in such a limited sense, as to place its beneficial use within the narrowest confines possible by. construction. State v. Cost, 10 Dec. (Re.) 619; 22 Bull., 250.
    We have so far considered the case from the standpoint of an ordinary witness whose deposition is sought to be taken, and refer to the following authorities, which seem conclusive: Jennings, Ex parte, 60 Ohio St., 319; Nushuler, In re, 4 Dec. (Re.), 299.
    We have shown that the law in Ohio is, that an ordinary witness may be compelled to give his deposition before the trial. The decisions of the nisi prius courts in Ohio are not so unanimous as to the right to take the deposition of the adverse party, but with the exception of the case of Humphrey, In re, 7 Circ. Dec., 603; 14 C. C., 517, the decisions of the circuit courts in this state hold that the right exists. Meader v. Root, 5 Circ. Dec., 61; 11 C. C. R., 81; Robinson v. McConnell, 10 Circ. Dec., 797; 19 C. C. R., 716; Miller, Ex parte, 11 Dec., 69; 8 N. P., 142 (affirmed 12 Circ. Dec., 102; 21 C. C. R., 445).
    Section 5266, Revised Statutes, provides that “either party may commence taking testimony by deposition at any time after service upon the defendant.” This is general in term, and the class of witnesses whose depositions may be taken at this time is in no way restricted, and therefore does not exclude the adverse party. If an adverse party is to be ex-eluded from tlie operation of this unqualified statute, it must be because of some disabilities of “parties” existing outside of the statute.
    Section 5243, Revised Statutes, provides that the opposite party may be compelled to testify. Roberts v. Briscoe, 44 Ohio St., 596; Robinson, In re, 9 Dec., 763; 7 N. P., 105.
    Our statutes which compel parties to testify before the trial are the statutory substitute for the equity bill for discovery, and answer largely the same purposes. 8 Am. & Eng. Ency. Pl. & Pr., 366; Chapman v. Lee, 45 Ohio St., 356.
    The only decision of note contrary to our contention is Humphrey, In re, 7 Circ. Dec., 603; 14 C. C. R., 417, already referred to, but that decision is expressly qualified by the fact that it was admitted that the deposition was taken in bad faith.
    Has a notary the power to issue and compel obedience to the subpoena duces tecum?
    
    The following are the sections of the statute which are applicable, viz.: Secs. 119, 6537, 5246, 5247, 6705, Revised Statutes.
    Sections 5246-7, Revised Statutes, are within the sections referred to by Sec. 6705, Revised Statutes. Section 5247 provides expressly for subpoenas duces tecum,'and 6705 by incorporating 5247 into the powers of a justice gives the justice power to issue the subpoenas duces tecum, and by Sec. 119 the notary has consequently the same power. It can hardly be argued that the provision giving the right to issue a subpoena duces tecum is not “applicable” in a proceeding before a justice.
    The case refered to by adverse counsel, Sims, In re, 4 Dec. (Re.) 473; 4 Bull., 457, was decided without any reference to Sec. 6705, and, therefore, if for no other cause, the reasoning is unsound and the decision not authoritative.
    We desire to call attention to the fact that a circuit court in Ohio has pased on this question, and the decision is in line with what we contend the law to be. See an article by the editor of the Weekly Law Bulletin in 35 Bull., 345; 12 Circ. Dec., referring to an unreported case of Woods v. Altschul, decided in 1896 by the circuit court of ■ the second circuit in Clark county. The decision is directly in point.
   Davis, J.

The right to^ take depositions should be carefully distinguished from the right to use them. The one depends upon the competency of the evidence, or upon the existence of one or more of the cases mentioned in Sec. 5265 of the Revised Statutes; the other is a precautionary privilege granted by Sec. 5266 of the Revised Statutes. . The statutes provide that the testimony of witnesses may be taken by deposition (Revised Statutes, See. 5261), and presumably this applies to all witnesses) whether parties to the action or not, subject, however, to the limitation that a party may be examined as if under cross-examination, at the instance of the adverse party. (Revised Statutes, Sec. 5243.) An adverse party is, therefore, not exempt from testifying in a deposition; but whether the deposition of such witness, or of any other witness may be used or not must depend upon the judgment of the court when the deposition is offered as evidence. Whether or not the substance of the deposition is incompetent, is* to be left to the subsequent determination of the court; as is also the question whether a command to produce books, papers or other thing under the control of the witness relates to such books, writings or other thing as he may be compelled to pro<luce. If the witness assumes to decide these questions for himself at the time, unless the interrogatory involves a question of privilege, he must do so at his peril. If he should be right in his decision he would lose nothing; if wrong, he must suffer the consequences. Whether or not the provisions of the statutes afford opportunity for obtaining undue advantáge over, and of oppressing, an adverse party, is a legislative and not a judicial question. We cannot consider that question with propriety. But whether or not some wrong has been done, or is being done, under cover of legal process is, as we have said, ultimately for the decision of the courts.

Under the Revised Statutes, Secs. 5269 and 5271, a notary public is authorized to take depositions within this state, provided that he be not a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.

In providing the means for securing the attendance of witnesses the statute requires the issuing of a subpoena under seal of the court, and that “the subpoena shall be directed to a person therein named, requiring him to attend at a particular time and place, to testify as a witnes; and it may contain a clause directing the witness to bring with him any book, writing or other thing under his control, which he may be»compelled to produce as evidence.” Sec. 5247.

In the same connection it is provided that “When the attendance of a witness before an officer authorised to talce depositions is required, the subpoena shall be issued by such officer.” Section 5248. What subpoena? Obviously the subpoena described in the preceding section. It is apparent, therefore, that a notary public is authorized to issue a subpoena duces tecum; and a refusal by the witness to obey such a subpoena would be a contempt of legal process. It follows from wbat has been said that all of these plaintiffs were guilty of disobedience of lawful authority exercised by the notary public. Did he have- power to compel obedience to the subpoenas issued by him and to punish the witnesses for refusing to obey the subpoenas or for refusing to testify? By Sec. 1Í9 of the Revised Statutes it is provided that “in taking depositions he shall have the same power to compel the attendance of witnesses and to punish them for refusing to testify which is by law vested in justices of the peace.” Revised Statutes, Secs. 6541 and 6542, contain the following provisions: “Whenever it shall appear to the satisfaction of a justice, by proof made before him, that any person has been duly served with a subpoena to appear and give testimony before him in any matter in which he has authority to require such witness to appear and testify, that his testimony is material; and that he refuses or neglects to attend as such witness in conformity with such-subpoena, the justice shall issue a warrant to arrest the delinquent for the purpose of compelling his attendance and punishing his disobedience,” and “when a person arrested is brought before the justice, or when a person in attendance .refuses to testify as a witness, and no valid excúse be shown, the justice may impose a fine on him,” etc.

It has been decided by this court, however, that the powers of a notary public to punish for contempt by a witness' are not limited to these sections, and that the powers conferred by Revised Statutes, Secs. 5252 and 5254 upon “an officer” taking depositions extend to a notary public, DeCamp v. Archibald, 50 Ohio St., 618, and it does not appear that any of the questions propounded to the witnesses were incompetent, nor that the books and papers which the witnesses were required to produce were such as they could not be compelled to produce. We, therefore, find no error in the judgments of the circuit court, and they are accordingly affirmed.

Minshall, C. J., and Williams, Burket, Spear and Shauck, JJ., concur.  