Los Angeles herald., 1891-08-29
The Case of Bell Against the
County Dismissed.
No Cloud on the Title to the
Courthouse.
The Consequence of Refusing to
Obey q Subpoena.
Judge Clark Orders the Case Dis
missed-The Decision Given q
in Full.

=
decision disposing of the claim of James
H. Bell to the property on which the
new county court house now stands.
The decision ia on motion of the DIS
trict attorney to strike out the COM
plant, because the plaintiff had refused
to appear and give his deposition before
notary public when legally subpenaed.
The earlier proceedings in the case and
the argument on the motion, which
occurred before the court vacation, have
been heretofore detailed in these
columns. The decision reads as follows:
This is motion to strike out plain
tiff's complaint. The action is one
brought to quiet Gitle to certain real
property described in the complaint and
known as the courthouse. property"
From the files in the case and the afi-
davits used on the hearing of the mo-
ton, it appears that on June lS, 1891,
the attorney for defendant served upon
deposition of James H. Bell would
be taken at time and place therein
specified, and also copy of an
affidavit showing the said Bell to
be party to said action, viz, the plain
fore within subdivision 1, section 2O2l,
G. G. P. 1t further appears that sub
pgna was issued by the notary before
whom the deposition was noticed, and
regularly served upon the said Bell.
This subpoena the said witness disobeyed
but his attorney appeared at the time
and place specified, and objected to the
sufficiency of the notice, and stated that
he should not allow the said witness to
give his deposition-the said witness
being at the time in the hallway adjoin-
ing.
The motion is made under section
1891, G. G. p, which reads "Disobedi-
ence to a subpoena, or a refusal to be
sworn or to answer as witness or to
subscribe an affidavit or deposition when
required, may be punished as con-
tempt by the court or officer issuing the
subpoena or requiring the witness to be
sworn; and if the witness be party
his complaint or answer may be stricken
out"
Plaintiff q counsel urged that the
notary had no power to issue the sub
pnna, and that the notice served upon
plaintiffs attorney should, under section
1915, G. G. p, have been served upon
plaintiff personally. I see no merit in
this argument. Section 2031, G. G. p,
reads: Either party may have the
depositionSof witness within this state
in either of the cases mentioned in Sec
ton 2O21 before a judge or officer au-
thorized to administer oaths, on serving
upon the adverse party previous notices
and place OF examination, together with
an affidavit showing that the case is
within that section" That notary
public is an officer authorized to admin
lister oaths is made evident by
reading of section 2093, G. @. r.
1t follows, therefore, that he was a
proper officer before whom to take the
deposition, and had therefore power un-
der section 1886, @. @. F., to issue SUBJ
pena. Subdivision of that section
provides that to require the attendance
of q witness out Of court before Judge,
Justice or other officer authorized to ad-
minister oaths or take testimony in any
matter under the laws of this state, the
subpoena shall be issued by the Judge,
Justice or other officer before whom the
attendance is required. Nor is the Sec
ond point made by plaintiff, j. e., that
section 1015, 9. Q. p, requires that all
papers, writs, etc.. to bring party into
contempt must be served upon him per-
sonally, we'll taken.
The penalty OF striking out the COM
plant Of plaintiff is attached to his diso-
bedience Of the subpoena, and is
not based upon the notice specified in
secJion 2O3l supra. There is no good
reason why that notice should be
served upon the party personally
when the case comes under subdivision
l of section 2O21, G.. G. r., more than
when it comes under any other sub
division of that section. The case OF
Keisker VS.. Ayres, 46 CAL, 80, is in
point. There the same method Of pro-
| cedure was taken as in the case at bar,
and the supreme court sustained the ac-
ton of the trial COURT in striking out the
complaint and dismissing the action.
That case arose under the practice act,
but an examination will show that there
has been no material change between
sections 400, 524, 429 and 403 of that act
and sections 1891, 1O15, 2031 and 1885 of
the code of civil procedure.
1t follows that I am of opinion that
| defendants motion should be granted,
and it is SO ordered. Let the complaint
be stricken out and the action dis
missed. w. HI. CLARK, Judge.
August 27, 1891.