The record-union., 1897-05-01
WEINSTOCK- M'CLATCHY Case.
Judge JOhnSOn'S Decision in the DepoSi-
tiOn Case.
The Notary Should Have Been Asked
to Compel the Witness to
Answer.

court compel V. S. McClatchy to an
swer certain questions propounded to
him when his deposition in the libel
case was being taken before a Notary
Public. The court holds that the No
tary had the power to compel the wit
ness to answer proper questions, and
that the court cannot consider the
deposition until it is offered when the
case comes up for trial. The decision
is given in full below:
RULING OF THE COURT.
In the Superior Court, County Of
Sacramento, State of California H.
Weinstock, plaintiff, VS. c. K. and v.
S. McClatchy, etc, defendants.
This is a motion to compel the de-
PENDANT, Y. S. McCIatchy, to answer
certain questions propounded to him
during the taking of his deposition be-
fore a Notary Public.
The defendant mentioned was sub
penaed, and in obedience thereto APP
peared before a Notary Public, was
sworn and gave his testimony, OStensi-
bly, for the purpose of the same being
used at the trial of the cause. During
the proceeding of taking his deposition
certain questions were prOpounded to
him, which, under the advise of his
counsel, he declined to answer. At the
conclusion of the deposition the wit
ness signed his name to the testimony
given, the Notary attached the usual
certificate and returned the same to this
court. Thereupon plaintiffs counsel
makes this motion that he be required
to answer the questions referred to.
The taking of the testimony of a wit
ness out of court for the purpose of
using it at the future trial of some
cause or proceeding in court is a stat
utory provision. 1t was enacted for
the purpose of providing for the pro-
curement of testimony where the wit
ness, by reason of his residence, is not
amenable to the process of the trial
court; where he is about to depart from
the county where the trial is pending;
where the witness is too infirm to at
tend court; where the witness is the
only one by which a material fact can
be established, or where the witness is
a party to the action. &C. G. P, Sec
ton 2021)
The foundation for the proceeding is
to be found in Section 2031, c. c. P. That
is that the party desiring to take
deposition of a witness within the State
must serve upon the opposing party an
affidavit showing that it is one of the
cases coming within Section 2021, c.
c. P, and a notice giving the time and
place of the examinations. The next step
in the proceeding is to procure the at
tendance of the witness. This is done
by the means of a subpoena. (Sec.
1885, c.. c. P, Subdivision p Section
1886, G. G. P, says the subpoena may
be issued when the witness is required
to attend out of court-as in this case
by the Judge, Justice or any officer
before whom the attendance is re-
quired. Sections POOP and 2006, c. c. P,
prescribe the manner of taking the
deposition, while Section 1891 prescribes
the duties of the witness and the pow
ers of the party taking the deposit
ton.
1t is as follows: "DisObedience to
subpoena or a refusal to be sworn, or
to answer uestions as a witness, or to
subscribe an affidavit or deposition
when required, may be punished as
contempt of the court or officer issu-
ing the subpoena or requiring the wit
ness to be sworn, and if the witness be
a party his complaint or answer may
be stricken out"
That this court has no power to pun
ish a witness for refusing to answer
before a Notary Public has been set
tied by the Supreme Court of this
State. Nezinsky VS.. Superior Court,
y Cal, 510) In that case the court
says: THE right to take and use a
deposition is a mere statutory privi-
lege, and can be exercised and en-
forced only in the manner and to the
extent provided by the statute which
gives it, If we look to the statute
upon the subject of taking dispositions
Of witnesses in this State, we find but
one place where the court or Judge may
interfere in any way of the procedure,
and that is that the Judge may shorten
the statutory time in the notice to
take the deposition for cause shown.
(Section 2031, C. c. P)
The Legislature has seen fit to pro-
vide penalties for the protection of the
litigants in cases of this character It
provides that he may be punished for
contempt by the Judge or officer taking
the deposition, or if he be a party his
complaint or answer may be stricken
out; and by Section 1892, if he fails to
obey the subpoena, he forfeits 500 to
the party aggrieved and becomes liable
for all damages caused by his failure to
appear. In the case of Lezinsky VS..
the Superior Court, the Supreme Court,
in express terms, declines to express
an opinion as to whether a Notary
could punish a witness for contempt
for declining to answer a question
while his deposition is being taken be-
fore him, it not being necessary for the
purpose of coming to a conclusion of
the case then under consideration.
I think it will be profitable in this
case to consider that question here.
Section 1891, c. c. P, provides that
the court or officer before whom the
deposition is taken may punish for con-
tempt a witness who refuses to an
swer Section 1914 p. c., clothes a No
tary Public with the power to take de-
positions in an action pending in the
courts of this State. If the Notary has
the power to punish for contempt in
such a case, it is because the power is
vested in him by the Legislature. 1t is
clear to my mind that Sections 1891, c..
c. p, and 1874, p. c., intended to and
does give him such power.
In many of the States Notaries have
the power to take dispositions, and in
some the power to punish a witness for
contempt for refusing to answer is
given. Ohio has a statute very similar
to ours. Section 1863 Of the Revised
Statutes designates the officers bywhom
dispositions may be taken and includes
a Notary Public" Section 1852 pro-
vides among other things that "a re-