Gay v. Thorpe

ALLEN, J.

This is an appeal from an order of the superior court of San Diego County denying appellant’s application for a writ of prohibition against respondent. The record discloses that on March 20, 1903, there was an action pending in said superior court in which case notice was duly served upon defendant, properly supported by affidavit, to take his deposition. This notice and affidavit were filed with respondentias justice of the peace for said county, and he issued a subpoena requiring defendant to appear on a day specified and give his deposition. The defendant disobeyed such subpoena-. Upon an affidavit being filed, a warrant of arrest was issued by the justice, directing the defendant to be brought into the presence of said justice to answer the charge of contempt. Appellant thereupon applied to the superior court of San Diego County for a writ of prohibition, commanding the respondent justice to appear before such court and show cause why he should not be restrained from further proceedings in said matter. Upon the hearing of this application, the same was denied. This was error.

The taking of a deposition is a part of the proceedings in the court for whose use the evidence is sought to be taken. One who is a witness summoned to attend and give his deposition in an action is certainly a person connected with a judicial proceeding before a court. His conduct in failing to attend in obedience to a subpoena is therefore a matter which can be controlled by the court; and if so, the control can be made effective only by the existence of the power to

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punish the disobedience.

(Burns

v.

Superior Court,

140 Cal. 11, [73 Pac. 597].) The taking of a deposition to be used on the trial of the cause is a proceeding in the cause.

(Crocker v. Conrey,

140 Cal. 217, [73 Pac. 1006].) The jurisdiction of courts of equity, having been given to the superior court by the constitution, cannot be taken away by statute.

(Tulare