
    Dudley et al v. McCord et al.
    1. Habeas Corpus: contempt op justice op peace ^refusal to make affidavit: code, § 3962, 3963. Under § § 3962 and 3963 of the Code, a person is not bound to make an affidavifAvhieh is sought only as information on which to base a civil action; and in this case, where ■ plaintiffs were committed by a justice of the peace for refusing to obey a subpoena, commanding them to appear before him to make an affidavit for such a purpose, they should have been discharged upon habeas corpus. Robb v. McDonald, 29 Iowa, 330, and State v. Seaton, 61 Id., 563, distinguished.
    
      Aptpeal from the order, of Hon. II. G. Henderson, judge * of the Eleventh judicial district of Iowa.
    
    Wednesday, April 8.
    
      The plaintiffs, E. L. Dudley, E. IT. Chapman, P. C. Eldridge and M. 0. Healion, were restrained of their liberty by the defendant, George B. McCord, sheriff of Marshall county, and the defendant, Ii. D. East, deputy sheriff of Marshall county. Being so restrained, they made application to the Hon. IT. C. Henderson for a writ of habeas corpus. The writ was granted, but upon hearing they were remanded. From the order remanding them they appeal.
    
      R. A. Sankey and Brown & Carney, for appellants.
    
      H. E. J. Boardman and J. H. Bradley, for appellees.
   Adams, J.

The plaintiffs were committed to custody by one A. F. Haradon, a justice of the peace, for an alleged contempt of his judicial authority. The application for a writ of habeas corpus was based upon the allegation that the commitment was void, for the reason that the alleged contempt was merely the disobedience of an order, and the order' was made in a matter in which the justice of the peace had no jurisdiction.

The question presented involves a construction of the following provisions of the Code, which are in these words:

“Section 3692. When any person is desirous of obtaining the affidavit of another, who is unwilling to make the same fully, he may apply to any officer competent to take depositions as herein declared, by petition, stating the object for which he desires ^e affidavit.

“ Section 3693. If such officer is satisfied that such object is legal and proper, he shall issue his subpoena to bring the witness before him, and if he fails then to make a full affidavit of the facts within his knowledge to the extent required of him by the officer, the'latter may proceed to take his deposition by question and answer in writing in the usual way, which deposition may afterwards be used as an ordinary affidavit.”

In August, 1884, one J. J. Higginson and one Elijah Smith, claiming to be stockholders in the Central Iowa Eailway Company, filed a petition before Ilaradon, as justice of the peace, averring that they were about to commencé añ action for an injunction against the company, to prevent the carrying out of certain pretended contracts, and also against the acting president aDd directors of the company, for the purpose of removing them from office. They averred in substance that, to enable them to obtain the information necessary for commencing the action, they needed and desired the affidavit of E. L. Dudley, E. II. Chapman, P. C. Eldridge and M. O. Ilealion. The application was granted, and a subpoena was issued and served upon the persons whose affidavits were desired. They did not obey the subpoena. Thereupon the justice issued a warralit, and caused the per¿ sons subpoenaed to be brought before him, to show cau'se why they should not be punished for contempt. They madé answer that they were not under obligation to obey the suN poena, for reasons as follows: “ First, because there is no proceeding in any court authorizing the justice to take the testimony of any of these parties; second, the petition eon-' fers no jurisdiction to cause a summons to issue for the arrest and commitment of the witnesses, and is wholly void.” The justice, deeming the answer insufficient, adjudged the persons to be in contempt, and ordered that they be committed, as above set forth.

It was held in Robb v. McDonald,, 29 Iowa, 330, and State v. Seaton, 61 Iowa, 563, that the justice might punish for contempt for a refusal to give ail affidavit wiien subpoenaed, under the sections above cited, and that it was not competent for the person subpoenaed to set up that no legal use could have been made of the affidavit if it had been given. The ground upon which those decisions are based is that the justice has jurisdiction to pass upon the question as to whether the object for which the affidavit is sought is legal, and, if he judges it to be such, it is not for the witness to set up his judgment to the contrary, and refuse to obey the subpoena upon that ground. It is to be observed, however, that the decision in each of these cases was made by a divided court. It is to be observed, further, that in each there was an action pending, and the affidavit was sought for use in the action. Affidavits from these plaintiffs were not sought for use in an action, nor were they sought for any use for which there is any provision of law. They were sought for the mere purpose of information.

We are clear that the statute does not contemplate that persons can be forced to give affidavits which are sought merely for information. The statute provides that the witness may be brought before the officer, and that his deposition may be taken, and that the deposition may afterwards be used instead of an ordinary affidavit. The use referred to is manifestly a legal use as evidence, and the justice should refuse to issue a subpoena where affidavits are not ostensibly sought for such legal use, and also where, if ostensibly sought for such use, he should be satisfied that they were not desired for such use in fact. If ITigginson and Smith’s petition pa(j expressly stated that the affidavits were not sought for any use contemplated by the statute, it would manifestly have been insufficient to invoke the jurisdiction of the justice; but we cannot regard the petition as essentially different. The use stated was, we think, not contemplated by tlie statute; and we cannot presume that the affidavits were sought for some usé not stated. The petition, then, did not purport to come within the statute, and in this the case differs from those above cited. We are of the opinion, therefore, that the justice had no jurisdiction. It follows that these plaintiffs were illegally committed, and that their application to be released upon the writ of habeas corpus should have been sustained.

It remains to be stated that an application was made by the plaintiffs in this case to Mr. Justice Beck, at chambers, to be released upon filing a supersedeas bond, and an order for their release was made. Afterwards, a motion was filed by the defendants in this court to vacate the order, on the ground that Mr. Justice Beck had no power to make it. In the view which we have taken of the case, the motion is of no practical importance; and, without ruling upon its merits, we have to say that we think that it should be dismissed.

Reversed.  