Crocker v. Conrey

BEATTY, C. J.

This is an original proceeding by

mandamus

to compel the respondent to complete the taking of a ■deposition and to employ the process of contempt against the witness to compel him to answer. The matter has been submitted upon a demurrer to the petition, from which it appears that these petitioners, having commenced an action for damages in the court of which the respondent is judge, filed a proper affidavit and gave regular notice that they would on a certain day take the deposition of the defendant therein before said judge at his courtroom. In pursuance of this affidavit and notice, the respondent issued a subpoena commanding the attendance of said defendant as a witness, and at the appointed time he appeared and was duly sworn to testify as a witness in the cause, but by the advice of his counsel and under their instructions he refused to answer certain proper questions propounded to him by counsel for the plaintiffs, and further declared his intention to refuse to answer any questions relating to the matters in controversy in the action.

Counsel for plaintiffs thereupon requested respondent to commit the defendant for contempt until he should consent to answer all such proper questions as might be asked him. This the respondent refused to do upon the sole ground that he had no power or jurisdiction to compel the defendant to answer.

A number of questions have been elaborately argued by counsel that are disposed of by our recent decision in the case

[215]

■of

Burns

v.

Superior Court, ante,

p. 1. It is there held— contrary to the decision in

Lezinsky

v.

Superior Court,

72 Cal. 510—that the refusal of a witness in a proper case to attend and "give his deposition before a notary is one of the contempts of court defined by section 1209 of the Code of Civil Procedure which the court having jurisdiction of the action in which the deposition is to be used may deal with in the same manner that it may deal with other contempts not committed in its immediate view and presence. Under the law as thus declared there can be no doubt that this witness was guilty of a contempt in refusing to answer any question relating to the matters in controversy,—for this was a refusal not only to answer questions of doubtful or disputed pertinency, but was a refusal to answer any and every question that might be asked, however material and unobjectionable. There is equally little doubt that the