The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1897-08-10


renee and Williams will be dismissed ac-
cordlng to agreement.
The commitment eff Lawrence and VIII
llams was placed in the hands of toe
Sheriff yesterday. That officer desired
10 consult his counsel-Reddy, Campbell
Metson-and the attorneys for Mr..
Sprecke offered no objection. Later in
the day Johnson, Linforth q Whitaker
HE'D the following brief with the counsel
Tor the Sheriff:
In Superior Court-Spreckels VS.. Hearst ct
al. Brief as to power of notary to punish for
contempt.
The taking of deposition is purely crea-
alton of statute
A notary is a statutory officer
The powers and duties OF a notary are pre-
scrlbed by statute, and among those prescribed
is The duty
"To take dispositions and afdavits and ad-
minister oathS and affirmations in all matters
incident to the duties OF the Office, or to be
USED before any court, Judge. officer or board
In this State."-Section 1874, Political Code.
a notary can also take the proof or acknowl-
edgment OF an instrument in this State."-
section 1181 Civil Code.
And in such proceedings can administer
oaths, employ interpreters, issue subpoena and
publish Tor contempt.''-Section 1901, Civil
Code
testimony of witnesses in this Sta tie is taken
In three modes: l. BY affidavit. q By depo-
sltion. 3. By oral examination.-section 2O02.
Code Civil Procedure.
"A deposition is a written declaration under
oath' made upon notice to the adverse party
1or the purpose OF enabling him to attend and
cross-eamine. "-Section 1904 Code Civil Pro-
cedure
1.-The mode and manner of taking deposit
uons In this State is prescribed by the Code OF
civil NEUTRALITY-SUSPICIOUS. 2019 1920, 2O21,
Zo3l and 2032, Code Civil Procedure.
These authorize the taking of the deposition
OF party to the action al any time after thu
service of the summons. "-Section 2021, Code
Civil Procedure
Either party may have the deposition
taken OF witness in this State before Judge
or officer authorized to administer oaths."-
Section 2031, Code Civil Procedure.
''The process by which the attendance of
witness is required is a subpoena. 1t is a writ or
order directed to person and requiring his
attendance at particular time and place to
testify a witness" section 1885, Code
Civil Procedure
"The subpoena is issued as follows: o. TO
require attendance out of the court, be fore a
Judge, Justice, or other officer authorized to
ADM ter oaths or take testimony in any
matter under the laws of this State, it is
issued by the Judge, Justice or any other Of
hcer before whom the attendance is re-
CURED "-Section 1886, Code Civil Procedure.
"Disobedience to a su bpena, or refusal to
be sworn, or 10 answer as a witness, or to SUBJ
scribe an affidavit or deposition when re-
quired, may be punished as a contempt by the
court or officer issuing the subpoena or requir-
ing the witness to be sworn; and if the wit
ness be party his complaint or answer may
be stricken out."-Section 1891, Code Civil
Procedure.
"The power of party to take dispositions
before notary and to have notary issue sub
pena to compel attendance and the lack of
power in the Superior Court to quash such
subpoena has been expressly upheld by the Su-
preme Court."-Pfster VS.. Superior Court Ga
CAL. 400.
'"The Superior Court has no power to punish
witness for contempt in refusing to obey
subpoena issued by notary. The court expressly
declines to decide whether notary could pun
ish for pt''-Lezinsky VS.. Superior
Court, 70 Cal $40.
"a notary public is authorized to punish
witness for contempt If the statute relating to
dispositions authorizes them TO be taken be-
lore notaries public, and declares that the re-
fusal 10 answer as witness when lawfully Or
dered, may be punished as contempt by the
testimony OF the witness is required. DE
Camp VS.. Archibald. So Ohio State, 6lS 40
Am. st. Rep, 692); In re. Abeles, II Kansas
451; Dogge VS.. State, 81 Nebraska, 272; ex
parte Mckee, Is Missouri, 500; Veins took VS..
Nicola tchy, Superior Court Sacramento COUNTY
April 80, 1897.
The statutes regarding powers of notar les in
the taking OF dispositions in aforementioned
States are ve-y nearly identica with that of
California.
Thus, Missouri statute reads that person re-
fusing to give evidence "may be committed to
prison by the court or other person authorized
to take his deposition or testimony"
Thus, Ohio statute reads that refusal to
answer may be punished as a contempt OF
the court or officer by whom the attendance or
testimony of the witness is required
We may add that in Ohio, Kansas and Ne.
braska the witness was party to the action.
and that In Ohio and Missouri the action was
one for libel.
We call attention to the fact that almost the
identical question asked of Wi THESES Lawrence
and Williams was decided by the above cases
from Ohio and Missouri TO be proper.
Thus, in Missouri witness was asked as to
the aut horship of a communication published
In a newspaper of which he was editor, which
he refused to answer and was committed for
contempt fol- such refusal, and commitment
was upheld.-Ex parte Mckee, Is Missouri
500
Thus in Ohio, witness was asked the follow
ing question, viz. "You have stated that you
prepared the substance of the article pub
lfshed in the Miami Valley News, and en-
pioyed somebody else, or got somebody else to
assist you in putting it into shape. 1 will ask
you who that person WASP"
Which he refused to answer and was COM
mitted for con tempt for such refusal, and the
commitment and the question were both up
held.
De Camp vs.. Archibald, So Ohio State, 61s
(40 Am. ST.. Rep, 692).
When the contempt consists in refusal to
perform an act, which party can perform, the
imprisonment may continue until he performs
the act. Sec. 1919. Code Civil Procedure.
The following cases sustain our contention:
Elk parte Priest, rs Missouri, 229.
Ex parte Kreiger, z Missouri Appeal. 367.
In re Jenckes. 6 Rhode Island, Is.
1t Is fair to say that the Populist Supreme
Court in Kansas in In re Huron, 4S Pac. R.,
574, decided April 10, 1897, reverse In re
Abeles II Kansas, and many other cases in
Kansas, which sustained In re Abeles, but it
WAS by a bare mai oritv.
-
GR0UNDLESS COMPLAINT,
IN