Johnson v. Superior Court

Sharpstein, J. Application for a writ of mandate. It appears by the petition for the writ that on the 28th of September, 1882, the wife of the petitioner commenced an action for divorce against him, and that, on the 2d of ¡November, 1882, he, by his attorney, filed an answer to the complaint denying some of the material allegations thereof. On the 11th of November, 1882, the plaintiff’s attorney in that action served upon the defendant’s attorney therein notice of a motion to have the court allow the plaintiff therein a reasonable sum for expenses and counsel fees in said action. Said motion was heard on the 22d of November, 1882, and an order was then made that the defendant in said action pay to the plaintiff therein fifty dollars costs and fifty dollars counsel fees. A certified copy of said order was sent to the State of Missouri, and there delivered to the defendant in that action, who is the petitioner herein. He has never complied with said order. It is alleged in the petition that the petitioner has never at any time during any of the proceedings in said action, or during its pendency been within the State of California.

On the 23d of February, after serving due notice of his [579]motion, petitioner applied to said Superior Court in which said action was pending for an order directing a commission to issue to take the depositions of certain witnesses residing in Missouri, whose names Avere stated in said notice of motion. The court refused to order such commission to issue, on the ground that petitioner Avas in contempt for not obeying said order requiring him to pay plaintiff in said action her costs and counsel fees.

These are, in substance, the facts upon which the petitioner "bases his application for a writ to compel said Superior Court to make the necessary order for the issuance of a commission to take the depositions of his said Avitnesses. The respondent demurs to the petition on the ground that it does not state facts sufficient to entitle the petitioner to the Avrit prayed for.

Ordinarily, a person sued has a right to defend, and the law has made provision for procuring the testimony of Avitnesses botliAvithin and Avithout the jurisdiction of this State. Whether a defendant in an action for divorce can legally be denied the process which the laAv has provided for procuring the testimony of Avitnesses residing beyond the jurisdiction of this State, on the ground that he has not obeyed such an order as the one above mentioned, of which a certified copy AA*as deliArered to him in the State of Missouri, is the question Avhich the record presents for adjudication.