The record-union., 1897-05-01
SACRAMENTO RECORD-UNION, SATURDAY. 1897

testify before him when required to do
So" Ode Camp VS.. Archibald, 90 Ohio
State Reports, 61S, 40 A. S. R., 692)
There are other States having sim
liar statutes which have received con-
struction by their highest courts, and
they all concur that the Notary has
power to punish for contempt in such
a case. Dogge VS.. State, II Neb. 213:
In re Ables, II Kan. 451; Elk Parte Nc
Kee IS Mo- 599)
l then must conclude from the high au-
thority given, that Notaries have power
under our statutes to punish for con-
| tempt a witness who refuses to an
swer a question proper to be asked
1t would then appear that the statute
| has given a party ample remedy by
| providing for just such contingencies as
| this. The officer taking the deposition
| is given the power to punish for con-
| tempt, and where the witness is a
party, as in this case, his complaint
or answer may be stricken out. 1t is
| probable that that was the extent in
| tended, so far as imposing a penalty
upon a witness for refusing to testify
while his testimony is being taken out
| of court to be used at an impending
| trial in court. The trial court by the
statute is given no jurisdiction or su-
pervision of any of the proceedings re-
| lating to the taking of the deposit
ton, except as to the single matter of
shortening the time for notice to take
! the deposition, until the deposition is
filed in court by the officer taking it.
Then, for the first time, the court ac-
cd 10
sition 1t can then, for the first
time, pass upon the regularity of the
proceedings had in giving the Notary
jurisdiction, the taking of the testimony
and it's admissibility in evidence I be-
lieve the Supreme Court are inclined to
this view. (See Lezinsky VS.. Superior
Court, ~ Cal, 80, and Pfester VS.. Su-
perior Court, GA Cal, 400
| The plaintiff in this case should have
applied to the Notary, while the depo-
sition was being taken, to have the
question answered, and if not answered
have asked him to impose the penalty
| provided by statute. He failed to do
so, permitted without objection the wit
ness to sign the deposition as taken,
and without objection the Notary to
| certify the deposition ms completed to
| this court.
BY doing so he is deemed to have
| waived any right that he might have
| had. Stuart VS.. Ross, Dallas, 157;
| Weeks on Dispositions, 431.)
| In this case the Notary, as provided
| in Section 2032, C. C. p, returned the
deposition into court in it's COM
plete condition. When he did so his
commission expired. All the power
| the court has over it is to pass upon
| its admissiblity when it comes to be
read at the trial. (Pfester VS.. Superior
Court, Ga Cal, 400
Taking this view, it is unnecessary to
consider the question whether the cues
tons propounded We're such as the wit
ness would be required to answer.
These We're matters involved in the ac-
ton of the Notary when he came to
consider the question whether he
should have committed the witness for
contempt in refusing to answer. prof
fatt on Notaries, Section 81; Elk Parte
hrelger, I Mo. App, 361.)
1t follows then that the defendants
demurrer to plaintiffs motion must be
sustained, and that the motion of plain
tiff to compel the witness to answer
be denied. MATT. F. JOHNSON.
Judge