Hopkins v. Superior Court

NOURSE, P. J.

This is an original proceeding in

mandamus

to require respondent Superior Court to make its order directing that certain depositions of witnesses be taken in the state of New York upon oral interrogatories.

Petitioner herein is plaintiff in an action pending before the respondent Superior Court in which action the respondent Woodward has appeared as one of the defendants. The plaintiff in said action gave to the defendant notice of his motion that the deposition of plaintiff and of one Lyons be taken in the city of New York upon oral interrogatories. Attached to the notice of motion was an affidavit in which the affiant gave as his opinion that these depositions could only be satisfactorily obtained through the use of oral interrogatories. Objections were filed on behalf of defendant Woodward showing that by reason of a temporary restraining order obtained by the plaintiff in the action pending the defendant had become insolvent and was without means to employ counsel in the city of New York to attend the taking of the depositions. Other facts were stated which tended to show that the depositions might be taken by written interrogatories without prejudice to the plaintiff. After a full hearing upon the motion the respondent court made its order that the depositions of these witnesses should be taken upon written interrogatories.

The question presented in this proceeding is whether the Superior Court has jurisdiction to determine in each particular case whether a deposition of a nonresident witness should be taken upon written interrogatories or upon oral examination. Section 2024 of the Code of Civil Procedure provides that a deposition of a witness out of the state may

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be taken upon a commission issued by the court upon an order of the court on the application of either party upon five days’ previous notice to the other. Section 2025 of the Code of Civil Procedure provides that the party moving for the commission must attach to the notice of motion the interrogatories upon which he desires it to be taken unless this is waived by the other party. Provision for the filing of cross-interrogatories and the settlement by the court follow and the section concludes with: “When agreed upon or settled, the interrogatories must be annexed to the commission; or, when the parties agree to that mode, or the court on the application of either party, after a hearing had upon two days’ notice to the opposite party, so directs, the examination must be without written interrogatories.” Section 2025% provides that when a party shall desire to take the evidence of a nonresident witness he “may have a commission directed in the same manner as provided in section 2024, Code of Civil Procedure, to take such evidence upon interrogatories to be propounded to the witness orally.”