The Montgomery advertiser., 1908-11-18


 obtain always in issuing and entering subpoenas of witnesses for trial.
 The provision fn subdivision 6. sec ton s34 of the Code of 1896. requiring the clerk to make the entries demand ed. according to Justice Mcclellan. has been duty of the clerk since the Code of 1852. It has been construed to re- quire the keeping of subpoena docket with the entries stated during the pen- jency of the cause, on trial and to make requisite entries on the trial docket within a reasonable time after the is- suance of the subpoenas and their re- turn by the shsriff.s =
 Subpoena DocIxet's Function.
 "The subpoena docket is not part of the final record fin a cause It is memorials more permanent than writs of subpoenas themselves, of steps taken to procure testimony, and hence it is not of the merits of the contro- versy. Dockets with us pertain to liv- ing causes. causes in progress of deter imitation or in course of enforcement of rights adjudicated therein. cause determined and the judgment satisfied have no place on any docket unless restored thereto by appropriate action. So. to make entry on. subpoena docket after Judgment rendered has been satisfied would be wholly vain and no possible use for the requirement. to keep such a docket could exist. To keep 1t as required during the pro gress of the cause through the court. affords 1t a purpose and service; other wise 1t has none.
 Has the petitioner any real interest in the keeping of the subpoena docket that a mandamus may issue. to com serve? We think so. and upon the | ground that the defendant in the cause has the right to have the opportunity afforded by such docket. when proper ly kept. to know upon whom as a wit | ness the power of the court in that cause has been exercised by the issue and the execution of the courts pre- cesss ss
 ''No good reason appearsf to justify the refusal to lay open on the sub poena docket who has been summoned as witness in the cause. Such reason cannot be drawn from an assumption of improper use of the information so afforded. On the contrary. a defend ant may we'll in accordance with the presumption of innocence that attend him until he is convicted, desire to as- sail the character Of summoned wit
 nesses or to present testimony tending l to show the entire want of opportunity of such witness to know that of which
 he is summoned to testify"
 Continuing on another phase of the subject Justice Mcclellan writes: ''The subpoena at least when executed
 Is as much a part of the file as any
 other mandate emanating under and | by virtue of the authority of the court
 in that cause. The statutory provision | (Code 1896, Section 934, Subdivision 14l is. when proper tender of fees-is
 made. imperative that the clerk shall make and deliver to any person ap- plying person should have the copy
 of any paper in his office. Such duty
 is ministerial purely. and against it's | performance no power resides In the clerk to determine whether the ap- l cIying person should have the copy
 sought and heinz denied the applica-
 tion in this instance, after proper ten- der of fees. mandamus was petitioners | due.
 'It follows that the judgment below l is reversed and one will be here rem
 dered awarding the writ as prayed. but l it will not issue unless the clerk de- 1 clines to take the course indicated in