Patrick Farms, Inc. v. Superior Court

SPENCE, J.

Petitioner seeks a writ of mandate to compel the respondent court to issue a commission for the taking of the deposition of a witness in the city of Chicago.

A motion for the issuance of said commission was made by petitioner in the respondent court in an action for an accounting in which petitioner was the plaintiff. The defendant in that action had filed his answer denying certain material allegations of the complaint. It was also alleged in said answer that the parties had theretofore had an accounting regarding

[425]

the matters mentioned in the complaint and that defendant had paid to plaintiff the full amount found due. It was further alleged that there was, at the time of the commencement of the action, another action pending in the same court between the same parties and for the same cause of action. In opposition to the motion for the issuance of the commission a counter affidavit was filed setting forth the foregoing facts as alleged in the answer and further setting forth that said issues had not been determined by the court and that it had not yet been determined that plaintiff was entitled to an accounting. Upon the hearing, the trial court determined that the testimony to be elicited from the witness related solely to the matter of the accounting and not to plaintiff’s right to an accounting. It therefore concluded that the motion for the issuance of the commission should not be granted until the question of plaintiff’s right to an accounting had been first determined. The trial court filed a written opinion stating its views, which written opinion is attached to the petition herein.

Petitioner contends that it was entitled to have the commission issue as a matter of right and that the trial court had no discretion in passing upon the motion for the issuance of the commission. In our opinion, this contention cannot be sustained. While ordinarily a party is entitled to the issuance of a commission as a matter of right at any time after the service of summons or the appearance of the defendant (Code Civ. Proc., sec. 2020;

San Francisco Gas & Electric Co.

v.

Superior Court,