¶1(dissenting). — The evidence taken on
¶2the. hearing of this cause convinced me beyond a doubt that the taking of depositions in the cause of Ackerman v. Green was adjourned by the commissioner from day to day becausé of the impossibility of procuring the attendance of certain witnesses whom the plaintiff’s counsel desired to examine. These adjournments were in good faith and not. intended to harass or oppress the defendant or the witnesses. A subpoena was issued for Mrs. Green, but she could not be found. Another witness by the name of Joyce was subpoenaed, but it turned out that his brother was the person wanted. There was neither lack of diligence nor any wrong motive shown on the part of the plaintiff or his counsel. The conduct of the commissioner and his notations of the adjournments were sufficient, in my judgment, to keep in force the notice for the taking of depositions, even as against the defendant in the cause. Some strictness has been imposed by the decisions on the continu*323anee of depositions from day to day, in order to prevent the party taking them from unduly annoying the opposite party, and now and then depositions have been suppressed because the notary or commissioner did not recite any good reason for a continuance to another day, or because the notice to take did not provide for a continuance if the depositions were not completed on the day named. The commissioner’s recitals in the present case show each continuance of which complaint is made was to procure the attendance of witnesses whose testimony was desired by the plaintiff, and that subpoenaes were issued for those witnesses was shown at the hearing of this petition. Mrs. Green had been absent from St. Louis and her counsel disclaimed knowledge of whether or not she had returned, but suggested that counsel for the plaintiff might try to get her by a subpoena. Thereupon they issued a subpoena for her and the taking of depositions was adjourned to await service of it. While waiting, counsel for plaintiff thought of some more questions they wished to ask the petitioner, who had been previously examined. They issued a subpoena for him which he disobeyed and on being brought in by attachment, took the position that the right to take depositions had expired and refused to testify. The subpoena for Mrs. Green was issued May 8, and the .taking-of depositions continued until May 9. On the latter day, the subpoena was returned “not found.” Thereupon subpoenas' for the' petitioner, Francis X. Green and two other witnesses were requested and issued and the taking adjourned to May 10. “There being no witnesses” present, the commissioner recited. On May 10, it appeared that only one of these witnesses for whom a subpoena had been issued, was served. This witness was John G. Joyce, who turned out to be ignorant of the cause, having: been subpoenaed by mistake when his brother was wanted. Thereupon the commissioner recited, “there being no other witness present *324and counsel for defendant not being present, tbe commissioner adjourned the further taking of these depositions to Saturday, May 11, A. D. 1907, at 11 o’clock a. m. at the same place.” On Saturday, F. X. Green (the petitioner) failed to appear though he had been subpoenaed. The commissioner’s record recites that an attachment for him, returnable Monday, M'ay 13, was issued and “thereupon the commissioner adjourned the further proceedings in the case to Monday, May 13, A. D. 1907, at 11 o’clock at the same place.” The record recites that on Monday, the witness Green had not yet been procured by attachment and counsel, for the plaintiff- requested the commissioner to issue an attachment for him to have him brought in on Tuesday, May 14. This was done and “thereupon the commissioner adjourned the further proceedings in the case to Tuesday, May 14, A. D. 1907, at 11 o’clock at the same place.” It appears that about all the delay there was, may be traced to the petitioner’s conduct and the impossibility of serving a subpoena on his mother.
¶3Adjournments under such circumstances would not be ground to suppress depositions, but are valid under our decisions which are the strictest on the subject of continuing depositions that I have found. The good faith and even the necessity of the continuances are apparent; and these are all the facts the law requires for the jurisdiction of the officer to remain intact. [Bowman v. Branson, 111 Mo. 343, 19 S. W. 634.] The purpose of insisting on good cause for the continuance of the taking of depositions from day to day is, as said, to prevent the party not taking from further attendance than is necessary, in reason, to complete the testimony. Now it. seems to me to be outside the reason of the case to say a witness may look over the continuances from day to day and if he finds one was for insufficient cause, and that the opposite party did not thereafter appear, may refuse to testify. If the notary *325or commissioner’s jurisdiction was entirely lost, the witness might take advantage of the fact, but I am firmly of the opinion that this had not occurred in the present instance.
¶4I think no stress should be laid on the omission to propound a question to the witness. He had announced positively that the depositions were closed; that he was acting under the advice of counsel and would refuse to answer any question or give any testimony. He reiterated his determination several times and gave reasons for it having no relevancy to his personal privilege to refuse .to answer interrogatories which might incriminate him. The contempt of the witness was his refusal to testify. This is made so by the express words of the statutes. [R. S. 1899, secs. 2897 and 4658.] Moreover there was no pretense at the hearing that the petitioner would have answered proper questions, but a contention that he had the right to refuse to answer any.
¶5For these reasons, I think he should be remanded into the custody of the sheriff.