Irving v. Superior Court

FINCH, P. J.

This is a petition for a writ of

certiorari

to review an order of the respondent court directing the examination of certain witnesses to perpetuate their testimony. The following sections of the Code of Civil Procedure are applicable to the questions presented by this proceeding:

“2083. The testimony of a witness may be taken and perpetuated as provided in this chapter.”

“2084. The applicant must produce to a judge of the superior court a petition, verified by the oath of the applicant, stating:

“1. That the applicant expects to be a party to an action in a court in this state, and, in such case, the names of the persons whom he expects will be adverse parties; or,

“2. That the proof of some fact is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit

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may at the time be anticipated, or, if anticipated, he may ■not know the parties to such suit; and,

“3. The name of the witness to -be examined, his place of residence, and a general outline of the facts expected to be proved. The judge to whom such petition is presented must make an order allowing the examination, and designating the officer before whom the same must be taken.” “2086. The examination must be by question and answer, and if the testimony is to be taken in another state, it must be taken upon a commission to be issued by the judge allowing the examination, under the seal of the court of which he is judge, and upon interrogatories, to be settled in the same manner as in cases of depositions taken under commission in pending actions.”

Petitioner contends that the application for the order does not state facts sufficient to give the court jurisdiction to make it. The application alleges:

“That your petitioner and others expect to be parties to an action in a Superior Court of this State, involving certain transactions of the El Dorado Water Company, a corporation organized and existing under the laws of the State of California and doing business in said State in connection with the issuance, sale and/or disposal of certain bonds of said company, and in which said case your petitioner is without sufficient information whereon to identify the prospective parties litigant; that probability of such action being commenced against your petitioner and others is imminent according to the best knowledge and information of your petitioner; That it is necessary to perpetuate the testimony of certain persons having knowledge of such transactions, and your petitioner expects to prove that El Dorado Water Company, a corporation, aforesaid, issued, by and under the authority of the Eailroad Commission of the State of California, certain bonds; that Union Trust Company of San Francisco, a banking and trust Company organized and existing under the laws of the State of California and doing business in said State, was depositary of said bonds; that part of the issue of said bonds, to wit: approximately $4,000.00 in face value, were abstracted from said depositary, and converted to the use and benefit of persons other than said El Dorado Water Company; and that by reason of said