In Re Marmaduke

HOUSER, J.

Pursuant to the issuance of a writ of

habeas corpus

herein, a return was filed by the respondent in which not only the facts set forth in the petition for the writ were controverted, but as well other facts were alleged which found ample support in the evidence taken in a proceeding in the juvenile court wherein the case of the minor child of petitioner was heard, and whose order in the premises is made one of the objects of attack by petitioner.

On the return day of the writ, it appearing that certain issues of fact were involved and which prior to reaching a conclusion regarding the merits of the writ, would require determination, petitioner by his attorney, in open court, admitted that he had no witnesses by whom he might establish either the truth of the allegations contained in his petition, or controvert the statement of facts set forth in the return to the writ; and thereupon stipulated that for the purpose of deciding the matter then before the court, the alleged facts contained in the petition might be disregarded, and that those set forth in the return to the writ, together with such facts as appeared in the transcript of the evidence received by the juvenile court, and made a part of the return, might be considered as true and correct; furthermore, that in such situation the only duty which devolved upon this court was that of inquiring into the legality of the detention of the minor child of petitioner, based solely upon the facts stated in the return and the record of the juvenile court as produced herein. Thereupon, after oral argument and the filing of a brief by each of the parties hereto, the cause was ordered submitted. However, in the meantime, petitioner presented a motion for an order by which he would be granted leave to “reopen the cause . . . and for commission to take deposi

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tions”; which motion was opposed by respondent, and, after argument thereon, was likewise submitted to this court for its determination.

On examination of the moving papers which are made a part of the motion to which reference has been had, it appears that, although the names of the proposed witnesses are stated therein, neither within the notice nor included within the affidavit attached thereto can be found any statement, either directly or indirectly, of what facts would be, or were expected to be, presented by evidence adduced from the testimony of either or any of such witnesses, or even a general statement that any part of such evidence would be material or relevant to the question proposed to be determined by this court. Moreover, no showing of due diligence was made by petitioner. To the contrary, it appears that, although the order which is the subject of attack by petitioner was made on August 19, 1929, more than a year elapsed thereafter before this proceeding was initiated by petitioner, as witnessed by its verification, and that the petition was not filed in this court until six months following such verification. "In such circumstances, the motion should be and it is denied. (Code Civ. Proc., secs. 595, 2027;