Cailleaud v. Superior Court

NOURSE, P. J.

Petitioner seeks by

certiorari

to review an order of the superior court directing the taking of depositions to perpetuate testimony under section 2083 et seq., of the Code of Civil Procedure.

The steps necessary to enable a party to have a deposition taken to perpetuate testimony are found in section 2084. The proceeding must be initiated by a verified petition of the applicant showing that he expects to be a party to an action in a court in this state, or “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 may at the time be anticipated”. The petitioner’s attack upon the proceedings in the superior court is based upon the ground that the applicants have not pleaded any facts which bring them within the terms of this section and that, therefore, the superior court was without jurisdiction to make the order.

The application upon which the proceedings were initiated alleges that the applicants are husband and wife, that the husband has executed a will in which he has devised property of considerable value to his son, August Cailleaud, and to his two grandsons, and property of little value to his son, Henry Cailleaud, Jr., the petitioner herein. It is then alleged that the son Henry has expressed displeasure over such disposition of the property and that applicants believe he will at some future date institute a

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contest or other action for the recovery of a larger portion of the property of applicants.

In so far as the application relates to an anticipated will contest it is sham. The testator would not be a party to a contest of his own will and the applicants show by their petition that the testator’s wife would not be an interested party. The allegations that the son Henry may institute some proceeding for the recovery of some of the property heretofore conveyed to the other son would seem to bring the application within the provisions of the first subdivision of section 2084 of the Code of Civil Procedure, but it will be noted that the first and second subdivisions of this section, are separated by the word “or” and that the second and third subdivisions are separated by the word “and’"’. Thus, it is necessary to allege, in addition to the matters contained in either subdivision one or two, the matters specified in subdivision three. Under this subdivision it is necessary to state “a general outline of the facts expected to be proved”.