Merrill v. Superior Court

KERRIGAN, J.

This is a petition for a writ of review. The facts are briefly as follows: On November 2, 1916, there was filed in respondent court the affidavit of Joseph K. Hutchinson, one of the attorneys for the plaintiff in the action of

California Trona Co.

v.

Harry E. Lee et al.,

pending in the superior court'of the state of California in and for the county of San Bernardino, showing that summons had issued therein and had been duly served on all the defendants therein; that

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petitioner B. H. Merrill (one of the defendants) was a necessary and material witness for plaintiff, and that said witness resided out of the county of San Bernardino and more than fifty miles distant from the place of trial of said action, and in the county of Alameda. Upon the filing of this affidavit an order was made directing subpoena to issue, and the clerk of respondent issued a subpoena as directed, requiring the attendance of petitioner before H. B. Denson, a notary public, on November 9, 1916, at his office in San Francisco. The subpoena was duly served on petitioner and a witness fee of $2.50 paid him, on November 3, 1916. Petitioner failed to appear at the time specified in the subpoena, or at all. This fact was made to appear to respondent by the certificate of the notary and the affidavit of Joseph K. Hutchinson. From the latter it appeared that petitioner resided within fifty miles of the place where said deposition was noticed for taking. On November 16, 1916, respondent made an order directing the sheriff to attach the petitioner and have him in court on November 29, 1916, to show cause why he should not be punished for contempt for disobeying said subpoena. This order, together with copies of the notary’s certificate,' affidavit of Joseph K. Hutchinson, and other papers relating to the matter, were served on petitioner on November 16, 1916. On November 29, 1916, petitioner appeared in court with counsel, and after argument respondent made an order, on December 5, 1916, finding and adjudging petitioner guilty of contempt. Judgment on this order was duly entered and recorded on December 6, 1916, and petitioner by this proceeding seeks to have it reviewed and annulled.