Kutner-Goldstein Co. v. Superior Court

SHENK, J.

This is a petition for a writ of review to annul an order to perpetuate testimony made by the respondent judge.

On May 8, 1930, Abe L. Kutner produced to the respondent judge a verified petition to take the testimony of Maurice A. Penny and L. A. Rummelsberg, pursuant to sections 2083 to 2089, inclusive, of the Code of Civil Procedure. The petition set forth that the petitioner expected to be a party to an action in a court in this state and that the names of the persons whom he expected to be adverse parties were Louis Kutner, Alfred Kutner and Kutner-Goldstein Co., a. California corporation having its principal place of business in San Francisco; that the residences of the witnesses were in the city of Fresno, and that each of said witnesses was a necessary and material witness for the petitioner in the trial of the expected action and that the testimony of each was necessary and material in the prosecution thereof. Then followed a general outline, covering five pages of typewritten specifications of the facts expected to be proved by the witnesses. This proposed proof concerned certain alleged illegal transactions between the proposed defendants Louis Kutner and Alfred Kutner, who were alleged to be in control of the Kutner-Goldstein Co., and had to do with their alleged unlawful practices with reference to the business transactions, borrowing and loaning money, transfer of assets and transfer of stock of the proposed defendant corporation, and dealings between said corporation and other corporations. The witness Penny was ■ alleged to have been for many years the financial man, general accountant, bookkeeper and manager of the Kutner-Goldstein Company, and the witness Rummelsberg to have been for many years last past the bookkeeper and sub-manager of said corporation and familiar with the books of account of said corporation and their whereabouts.

Upon the presentation of said petition the respondent judge signed an order directing the examination of said witnesses before a designated court commissioner at a specified time and place and directed the notice to be given. The court commissioner thereupon issued a subpoena requiring

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the witnesses to appear before him at the specified time and place to give their testimony, the time being fixed on the twentieth day of May, 1930. On May 14, 1930, the present petition was filed in the District Court of Appeal in and for the Fourth District, whereupon that court issued the writ as prayed returnable on May 26th. On May 22d the respondent judge submitted to the District Court of Appeal the record in the matter consisting of copies of the petition for the order, the order and the subpoena.