Cassou v. Superior Court

KOFORD, P. J.

This is an original application for a writ of

mandamus

to compel the respondent to issue a commission to take a deposition in a foreign state upon written interrogatories instead of upon oral interrogatories as ordered by the court. The petitioner is plaintiff in a divorce action pending in said Superior Court. She gave to the defendant in that action five days’ written notice of motion to take the deposition of a witness in the state of Illinois upon written interrogatories. The verified petition filed in this court stated: “That thereafter and on the hearing of the petitioner’s motion in said action for the issuance of the said commission upon said written interrogatories, the said defendant did not propose any cross-interrogatories, but instead and without giving your petitioner three days’ notice in writing or any other notice of his election so to do, applied to said superior court . . . for an order directing that said deposition be taken on interrogatories to be propounded to the witness orally.” The court over the objection of the petitioner ordered the deposition to be taken on oral interrogatories. The objections which the court thus overruled,

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besides specifying the inconvenience of taking the deposition orally, specified that the defendant had not given petitioner three days’ notice of his election to have the deposition taken orally in accordance with section 2025% of the Code of Civil Procedure.

The answer of respondent filed on the return date of the alternative writ issued herein set up the fact that the petitioner was in fact given notice by the defendant in said action of his motion to have the said deposition taken orally. A certified copy of said notice of motion was filed in this court on the argument. The notice was served one day before the day to which the hearing of petitioner’s original motion had been continued and the notice was accompanied by an order of said Superior Court shortening the time for the service of the same to one day.

It is now the contention of the petitioner that defendant’s one-day notice was ineffectual to give the court power to order the deposition to be taken orally. Petitioner contends that the case is governed by the provisions of section 2025% of the Code of Civil Procedure, wherein is found the following expression: “(Or where notice shall have been given that a commission to take the testimony of a nonresident witness will be applied for, the opposite party, upon giving the other three days’ notice in writing of his election so to do), may have a commission . . . orally.” Petitioner recognizes a conflict, as he must, between this section and section 2025 of the Code of Civil Procedure. That section provides the method of obtaining a commission to take the deposition of a nonresident witness upon written interrogatories and concludes with the following expression: “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.” Petitioner in attempting to reconcile these two sections claims that the three days’ notice provision of section 2025% is applicable exclusively to where the proceedings to obtain a commission for a deposition is inaugurated by a notice of motion to take the same upon written interrogatories. She contends that the two days’ notice of motion mentioned in section 2025 is applicable only where the proceedings are inaugurated by a notice to take an oral deposition. With this we cannot agree. If the original