The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-12-03
A NOTARY HAS POWER
Judge Osborn Holds That He
May Fine for Contempt
AND imPRlsoN IN DEFAULT.
Seymour wetmore Therefore Remains
In Custody-Exhaustfve Discus
sion OF the Law.

y
TIE provisions OF the law, according to
Judge Osborn, TO imprison witness for
contempt Ia refusing 10 answer questions.
Seymour Wetmore was therefore remand
ed by the court 30 the custody OF the sher-
IL. 70 be imprisoned until his me Of IS Is
paid. but took an appeal. so the supreme
court VIII 1nally pass on this interesting
question
The opinion OF the court, upon the appli-
cation for a writ OF habsas corpus, recites
that Werrnore alleged that he was unIaw-
fully deprived OF his liberty BY Sheriff
Van de vanter. In the case OF Bessie
Hendricks ct al. VS.. j. *. Edmiston and
II. II. A. Hastings. receiver OF the Sc
curity Savings bank. the court had issued
a notice TO Notary o. c. Pratt 10 take the
deposition OF Wetmore. on the ground that
he was aged and inflrm. and might not be
able 10 give his testimony upon trial. He
was duly subpoeuaed 10 testify before the
notary, but he refused 10 be sworn upon
advice OF counsel. and the notary adtudged
him IN contempt and committed MIN 10
fail in default Of s25 fine.
Three questions were presented for de-
termination in the case. says the court:
First. has a witness the right to refuse
10 testify before a notary when duly sub
poenaed in taking a deposition in a cause
pending IN court. on the ground that ne
il not going 10 depart from the state, and
trial? Secondly, has a notary public In
this state the power TO fine and commit 10
tafl a witness who refuses TO be sworn and
testify before him? Thirdly, II he has
such power is the commitment void be-
cause il requires the witness. in addition
to the payment Of the fine. TO be imprison-
edw until he will consent 10 be sworn!
The court holds that witness has no
power nor right 10 Judge as TO the pro-
pr.ety OF giving his testimony; the right
TO take the deposition Is gwen by statute,
and when a party has the right TO take
such deposition he has the right - compel
the attendance OF such witness.
The court cites in re Abe.es, Hth Kan,
page 45l, second edition, 349. opinicn
By Judge Brewer. and also section 81
general statutes Of this state, when pro-
yldes that notaries are authorized 10
take dispositions and affidavits ana ao-
minister all oaths required by law sec
ton 1910 OF the code provides: ANY WIZ
ness may be subpenaed and compelled by
any officer authorized TO take dispositions
10 appear and give his deposition. Sec
ton I655 provides: Failure 10 attend as
required BY the subpoena shan be consld-
cred a contempt" Section 1856 proVloes'
"a court, Judge, justice or the peace, or
any other officer may punish for con-
tempt. Section l,66S: EITHER party may
have the deposition OF a witness taken In
this state before any judge OF the superior
court justice Of the peace, clerk OF the
supreme or superior court, mayor or a
city, or notary public, upon serving no.
tee" etc Subpenas. according to SUBJ
division OF section 1.6o2. may be Issued
by such Judge, justice OF the peace. COM
missioner referee, or other officer before
whom evidence is required"
The court is Of the opinion that these
sections empower a notary TO punish Tor
contempt. and in this case the witness
- - - ~
tendance, but refused to be sworn or to
testify. Similar constructions or the stat
utes in Missouri, Kansas, Nebraska, ONO
and Wisconsin are cited. and in each state
there have been decisions similar to this
one where witnesses have refused 10 tes-
tify and have been accordingly punished
The Missouri statute provides that every
person Judge or other officer OF the state.
required TO take dispositions. or examina-
ton of witnesses shall have power
10 issue subpenas for witnesses to
appear and testify, and TO compel
their attendance in the same man
ner and under Ike penalties as
IN court of record" The decisions are
in line with the one just given here, as
are also those in each Of the other states,
and in one case a notary was sustained
for Furnishing a witness for d.SordeTly
conduct.
The remaining question OF whether the ac-
IlQl Oh tie notary - NbtA btAiNSN AAN -'AA
posed an additional penalty from that emu
merated IN section 1ed5 by requiring the
witness TO be confined IN jail until he
should testify or purge himself from con-
tempt. is doubted by ths court. and the
powers Of the notary are held 10 be as ex-
pressly enumerated; that is. to fix the
amount Of fine. not exceeding $50, and the
party confined shall stand committed until
the fine is paid. although some Of the STATE
utes might reasonably give the power 10
!mprlsoa until witness should testify. The
court however, thinks that strict construc-
ton should apply, and The notary had no
power 10 make other conditions or penal-
ties except the fine and commitment until
fine IS paid. The prisoner was therefore
reraanded until the fire "a paid.
There was some doubt about the appeal
iesng allowed, but when Mr.. Peterson said
that any time Mr.. Hastings would set
date Mr. Wetmore would testify, all par
ties desired 70 have the supreme court pass
en- tie question 50 the appeal bond was
fxed az 5000. The case carries with II tho
Interesting question ot SUCH a case being
appealahle.