Levin v. Superior Court

CRAIG, J. The petitioner is a resident .of the state of Massachusetts and the wife of the plaintiff in an action for divorce commenced in this state. Her answer and a cross-complaint were filed and the cause set down for trial on May 17, 1934, on which date her counsel were for the first [694]time able to make service of an order to show canse why attorneys’ fees, costs and alimony pendente lite should not be allowed. A motion for a continuance was interposed, supported by the affidavit of petitioner’s counsel to the effect that all witnesses by whom she intended to disprove the plaintiff’s allegations resided in Massachusetts, that it was necessary to a proper presentation of her case that the depositions of herself and of said witnesses be taken there and that she was wholly without funds with which to pay therefor. A continuance was granted, notice of motion for a commission was filed, and after hearing the motions for expenses and alimony pendente lite and for the commission to take the testimony of such witnesses were denied. It was stipulated that the question of attorneys’ fees and costs should be held in abeyance until the time of trial. Thereafter the motion to take petitioner’s testimony was removed from the calendar, the cause was again continued and on the fourth day of June said motion was denied and the date of trial was reset.

It is alleged that petitioner has no plain, speedy or adequate remedy at law, that her testimony is necessary and material and that without the same she will be unable to present her cause. The foregoing embraces practically all that is made to appear by the petition and the answer thereto. None of petitioner’s allegations is denied.

This proceeding is founded upon sections 2020 and 2024 of the Code of Civil Procedure, which authorize the taking of testimony by deposition outside the state on application of either party, and upon the case of San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30 [99 Pac. 359, 17 Ann. Cas. 933]. In like proceedings to obtain the testimony of a witness not a party in an eastern jurisdiction, for use on a second trial but pending appeal, it was said in the cited case: “What, then, is the proper construction of sections 2020 and 2021 of the Code of Civil Procedure, which prescribe the time for taking depositions? They say in plain terms that the deposition of a witness out of the state in all cases, and of a witness in a state in certain enumerated eases, may be taken in an action at any time after the service of summons or the appearance of the defendant. The language is very sweeping and comprehensive and clearly includes, if taken literally, all the time that an