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§ 424. Affidavits to be used in this State, before whom inay
be taken in this State.
An affidavit to be used before any Court, Judge or officer of this State, may be taken before any Judge or Clerk of any Court, or any Justice of the Peace, or Notary Public in this State.
1. Where the affidavit of a juror is sworn to be correct by another party, it may be treated as the latter's original affidavit. Wilson v. Berryman, 5 Cal. 41.
2. Courts take judicial notice of the official character of Justices of the Peace, in their own States. And an affidavit, in which the official character of the Jas tice before whom it is taken, does not appear is good. Ede v. Johnson, 15 Cal. 53.
3. An aflidavit need not be signed by the party making it. Id.
§ 425. If made in another State of the United States, before whom taken.
An affidavit taken in another State of the United States, to be used in this State, shall be taken before a Commissioner appointed by the Governor of this State to take affidavits and depositions in such other State, or before any Judge of a Court of Record having a seal.
§ 426. If made in a foreign country, before whom taken.
An affidavit taken in a foreign conntry to be used in this State, shall be taken before an Ambassador, Minister or Consul of the United States, or before any Judge of a Court of Record having a seal, in such foreign country.
§ 427. Certificate of the Clerk, if taken before a Judge of a Court out of this State.
When an affidavit is taken before a Judge of a Court in another State, or in a foreign country, the genuineness of the signature of the Judge, the existence of the Court, and the fact that such Judge is a member thereof, shall be certified by the Clerk of the Court, under the seal thereof.
CHAPTER V.–Of depositions taken in this State.
SEC. 428. Depositions of witnesses in this State may be taken
in certain cases. 429. Depositions may be taken before a Judge, etc., upon
notice to the adverse party. 430. Manner of taking depositions. May be used by
either party on the trial. 431. A deposition may be read at any stage of the action
§ 428. Depositions of witnesses in this State may be taken in certain cases.
The testimony of a witness in this State may be taken by depo sition in an action, at any time after the service of the summons or the appearance of the defendant; and in a special proceeding, after a question of fact has arisen therein, in the following cases :
1st. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended;
2d. When the witness resides out of the county in which his testimony is to be used;
3d. When the witness is about to leave the county where the aetion is to be tried, and will probably continue absent when the testimony is required ;
4th. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend.
1. Taking testimony by depositions is in derogation of the common law, and must not only be done by the proper officer, but every requirement of law must be complied with. McCann v. Beach, 2 Cal. 25.
2. All the requisitions of the statute, in relation to the taking of depositions, must be strictly complied with; and this must appear upon the deposition to entitle it to admission. Dye v. Bailey, 2 Cal. 383.
§ 429. Depositions may be taken before a Judge, etc., upon notice to the adverse party.
[1859.] Either party may have the deposition taken of a witness in this State before any Judge or Clerk, or any Justice of the Peace, or Notary Public in this State, on serving on the adverse
party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is one mentioned in the last section. At any time during the forty days immediately after the service of summons by publication has been completed, and at any time thereafter, when the defendant has not appeared, the notice required by this section may be served on the Clerk of the Court where the action is pending. Such notice shall be at least five days, and in addition, one day for every twenty-five miles of the distance of the place of examination from the residence of the
person to whom the notice is given, unless for a cause shown a a Judge, by order, prescribe a shorter time. When a shorter time is prescribed, a copy of the order shall be served with the notice.
1. A slight error in the title of a cause, where there is no other suit pending between the parties, will not invalidate the notice. Mills v. Dunlap, 3 Cal. 94.
2. The decision of such motion rests in the sound discretion of the Court, who must decide upon the sufficiency, or otherwise, of the grounds upon which such motion is made. Id.
3. Proof of notice to take a deposition, where the written notice was defective, was held good, when made by parol and conforming substantially to the statute. Id.
4. An appearance at the time and place, and cross-examining the witness, waives whatever objection may be had because the notice is too short. Jones v. Love, 9 Cal. 68.
5. An order to take testimony by deposition should specify the notice to be given to the adverse party. A deposition taken upon an order without such specification, where the opposite party has not had reasonable notice, ought not to be read in evidence. Ellis v. Davis, 5 Cal. 453.
6. Notice of time and place having been given, it is a matter of small importance who took the deposition, particularly in view of the inconvenience and delay which would result from a different rule. Williams v. Chadbourne, 6 Cal. 559.
7. It being objected by plaintiff to a deposition : Ist, that the copy of the order of the Judge, fixing the time for taking it, did not mention the notice to be given the adverse party; 2d, that no correct copy of said order was served ; 3rd, that no sufficient notice to take the deposition was ever given ; the objection was overruled, “because the original order of the Judge, made on affidavit, fixed the time of notice at three days, and because plaintiff's counsel acknowledged service in writing of a copy thereof March 8th, 1859, more than three days before the taking of the deposition :" Held, that there was no error; that the objection assigned was matter for the Court, and its discretion was properly exercised; that rcasonable notice should be given of the time and place of taking testimony: but what is reasonable notice, depends on the particular circumstances. Atwood v. Fricot, 17 Cal. 37.
8. To make the testimony of a witness admissible, he must be competent at the time of taking his deposition. It is the effect of the interest on the witness at the time his testimony is taken that disqualifies him. Kimball v. Gtarhart, 12 Cal. 27.
§ 430. Manner of taking depositions ; may be used by either party on the trial.
Either party may attend such examination, and put such questions, direct and cross, as may be proper. The deposition, when completed, shall be carefully read to the witness, and corrected by
him in any particular, if desired; it shall then be subscribed by the witness, certified by the Judge or officer taking the deposition, inclosed in an envelop or wrapper, sealed, and directed to the Clerk of the Court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the Judge or officer to the Clerk or such person, or transmitted through the mail, or by some safe private opportunity; and thereupon such deposition may be used by either party upon the trial, or other proceeding, against any party giving or receiving the notice, subject to all legal exceptions. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken by the reason of the absence or intended absence from the county of the witness, or because he is too infirm to attend, proof by affidavit or oral testimony shall be made at the trial, that the witness continues absent or infirm to the best of the deponent's knowledge or belief. The deposition thus taken may also be read in case of the death of the witness.
1. Where a deposition is taken ex parte, though after notice, and the witness is therefore not subjected to a cross-examination, the language used by him will be suspiciously regarded, and only a very literal interpretation given to it. Spring v. Hill, 6 Cal. 17.
2. There is nothing in the statute that requires that exceptions to depositions shall be filed before the time of trial. The objection can be made at any time before the depositions are read in evidence. Dye v. Bailey, 2 Cal. 383.
3. The certiticate of the Notary as set forth in the case is sufficient. Mills v. Dunlap, 3 Cal. 94.
4. Depositions are subject to all legal exceptions at the trial, save only the objection to the form of an interrogatory where the parties a:tend the examination. Lawrence v. Fulton, 19 Cal. 683.
5. When a deposition may be excluded.-A whole deposition cannot be excluded on the ground that certain questions asked on the examination were improper. The objection to the deposition on this ground must be confined to the particular questions; otherwise, any error in permitting the questions will be waived. Higgins v. Wortell, 18 Cal. 330.
6. It is not essential to the certificate of a Notary to a deposition taken before him, that it state that the deposition was read over to the witness before signing. But if the certificate states that the deposition was corrected by the Notary, under the direction of the witness, it is a suflicient compliance with the statute, because showing, by necessary implication, that the deposition was either read to or examined by the witness. Id.
7. If part of the deposition be liable to the exception of hearsay, this goes only to the rejection of that part, and the objection should be taken at the hearing. Myers v. Casey, 14 Cal. 419.
8. Where such rule of a District Court requires the notice as above, unless the exceptions appear on the face of the deposition, the meaning is that the objection --not the objectionable matter-must appear on the face of the deposition. ld. 9. It is no ground for the exclusion of a deposition that it was noticed to be
taken before the County Judge, but was taken before the County Clerk. Filliams v. Chadbourne, 6 Cal. 559.
10. A motion to suppress the reading of a deposition, before the case in which it was taken is put upon trial, is premature; the proper time to object to such deposition is when it is offered in evidence on the trial. Mills v. Dunlup, 3 Cal. 94.
§ 431. A deposition may be used at any stage of the action or proceeding.
When a deposition has been once taken, it may be read in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it.
1. The reading of evidence taken by deposition, although done after the jury have retired, is as much a part of the trial as any other. The People v. Ko'rler, 5 Cal. 72.
2. Query: Whether a party can object, on second trial to the reading of a deposition which he suffered his adversary to read on the first trial without objection. Myers v. Casey, 14 Cal. 542.
3. The object of this section is to enable either party to read a deposition admissible in itself, once taken, in any stage of the action or proceeding—not to render it admissible simply because it was taken. T'urner v. McIlhaney, 8 Cal. 567.
CHAPTER VI.— Of depositions taken out of this State. Sec. 432. Testimony of a witness out of the State may be taken
after service of summons or issue joined. 433. Such deposition shall be taken upon commission issued
under seal, upon notice; to whom to issue. 434. Proper interrogatories, direct and cross, may be pre
pared or may be waived by the parties. 435. Authority and duties of commissioner. 436. Trial shall not be postponed for return of commission,
except upon showing of materiality of evidence and due diligence.
§ 432. Testimony of a witness out of the State may be taken after service of summons or issue joined.
The testimony of a witness out of the State may be taken by deposition, in an action, at any time after the service of the summons, or the appearance of the defendant; and in a special proceeding, at any time after a question of fact has arisen therein.