Kibele v. Superior Court (1911) · DecisionDepot

Kibele v. Superior Court

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 26, 1911 No. Civ. No. 1020.Published

Before: Shaw

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Holding. The court held that a party to an action may be compelled to give a deposition after the service of summons but before an answer is filed, as the existence of an actual issue of fact is not a prerequisite for taking depositions.

Issues

Whether a party can be compelled to give a deposition in an action where no answer has yet been filed.

Disposition. dismissed

Quotations verified verbatim against the opinion

“it is not requisite that an issue of fact should have arisen in order to authorize the taking of depositions.”

“the existence of an actual, as distinguished from a potential, issue of fact, is not, by the terms of the statute, made a conclusive test of the right to take depositions de bene esse.”

Synopsis

PETITION for writ of prohibition to the Superior Court of Kern County. J. W. Mahon, Judge.

The facts are stated, in the opinion of the court.

SHAW, J.

The petitioner Kibele instituted an action in the superior court of Kern county against the Yesta Oil Company. The defendant, without answering, interposed a demurrer to the complaint, and upon such state of the pleadings proceeded to take the deposition of plaintiff in accordance with the provisions of the sections of the code relating to depositions. Under the advice of his attorney, E. L. Foster, also petitioner herein, plaintiff refused to answer certain questions propounded to him, and, notwithstanding the order of court duly made commanding him so to do, persisted, under the advice of his said attorney, in such refusal to answer. Thereupon petitioners were cited to show cause why they should not be adjudged guilty of contempt, Foster being included in the citation for the reason that he had advised Kibele to disobey the order. The matter coming on for hearing, the court directed that an order be prepared adjudging petitioners guilty of contempt, and committing them to jail for a term of five days, and was about to sign the order, when it was restrained from so doing by an alternative writ issued from this court directing it to show cause why it should not be prohibited from so doing, and meanwhile to desist from further proceedings in the matter.

The sole contention of petitioners urged in support of the granting of the writ is that, as no answer had been filed in the case, there was no issue presented, and hence for this reason only the questions propounded, conceded to be relevant and pertinent to matters alleged in the complaint, were not

[722]

pertinent to any matter in issue, and therefore plaintiff could not be required as a witness to give his deposition. The case of

Kibele

Vesta Oil Co.,

wherein defendant sought to take the deposition of plaintiff, was an action, as distinguished from a special proceeding. The statute (Code Civ. Proc., sec. 2021) in clear and explicit terms provides that the testimony of a witness who is a party to an

action

may be taken therein by deposition at any time after service of summons or the appearance of the defendant. In the case of

Kibele v. Superior Court

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Synopsis

SHAW, J.

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