of court, it is the duty of such officer or commissioner to report any such disobedience or refusal to the court issuing the subpoena; and the witness must not be punished for any refusal to answer a question or to subscribe an affidavit or deposition, unless, after a hearing upon notice, the court orders him to so answer or subscribe and then only for disobedience to such order. Any judge, justice, or other officer mentioned in subdivision three of section nineteen hundred and eighty-six, may report any such disobedience or refusal to the superior court of the county in which such attendance was required; and such court thereupon has power, upon notice, to order the witness to perform the omitted act, and any refusal or neglect to comply with such order may be punished as a contempt of such court.-1907-731.

1992. A witness disobeying a subpoena also forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action.

1993. In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring him before the court or officer where his attendance was required.

1994. Every warrant of commitment, issued by a court or officer pursuant to this chapter, must specify therein, particularly, the cause of the commitment, and if it be for refusing to answer a question, such question must be stated in the warrant. And every

warrant to arrest or commit a witness, pursuant to this chapter. must be directed to the sheriff of the county where the witness may be, and must be executed by him in the same manner as process issued by the superior court.-1880-115.

1995. If the witness be a prisoner, confined in a jail or prison within this state, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer, for the purpose of being orally examined, may be made as follows:

1. By the court itself in which the action or special proceeding is pending, unless it be a justice's court.

2. By a justice of the supreme court, or a judge of the superior court of the county where the action or proceeding is pending, if pending before a justice's court, or before a judge or other person out of court.-1880-115.

1996. Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.

1997. If the witness be imprisoned in the county where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon deposition.

CHAPTER III.

Manner of Production.

Article I. Mode of Taking the Testimony of Witnesses.

IV. Manner of Taking Depositions out of the State.
V. Manner of Taking Depositions in this State.
VI. General Rules of Examination.

ARTICLE I.

Section

Mode of Taking Testimony of Witnesses.

Section

2002. Testimony, in what mode 2004. Deposition defined.

taken.

2003. Affidavit defined.

2005. Oral examination defined. 2006. Depositions, how taken.

2002. The testimony of witnesses is taken in three modes:

1. By affidavit;

2. By deposition;

3. By oral examination.

2003. An affidavit is a written declaration under oath, made without notice to the adverse party.

2004. A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine. In all actions and proceedings where the default of the defendant has been duly entered, and in all proceedings to obtain letters of administration, or for the probate of wills and the issuance of letters testamentary thereon, where, after due and legal notice, those entitled to contest the application have failed to appear, the entry of said defaults, and the failure of said persons to appear after notice, shall be deemed to be a waiver of the right to any further notice of any application or proceeding to take testimony by deposition in such action or proceeding.-1907-981.

2005. An oral examination is an examination in presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.

2006. Depositions must be taken in the form of question and answer. The words of the witness must be written down, in the presence of the witness, by the officer taking the deposition, or by some disinterested person appointed by him. It may be taken down in shorthand, in which case it must be transcribed into longhand by the person who took it down. When completed, it must be carefully read to or by the witness and corrected by him in any particular, if desired, by writing or causing his corrections to be written in the body or margin of or at the bottom of the deposition, and must then be subscribed by the witness. The

officer before whom the deposition is taken must write his initials near said corrections. If the parties agree in writing to any other mode, the mode so agreed upon must be followed.-1907-731.

2009. Affidavits and depositions. 2013. Affidavit out of state, how How taken and used.

2010. Evidence of publication,

what.

taken.

2014. If made in a foreign country, before whom taken.

2011. Filing evidence of publica- 2015. Certificate of the clerk, if tion.

2012. Affidavits to be used in this

state, before whom taken.

taken before a judge of a court out of this state.

2009. An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by some other provision of this code.

2010. Evidence of the publication of a document or notice required by law, or by an order of a court or judge, to be published in a newspaper, may be given by the affidavit of the printer of the newspaper, or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when, and the paper in which, the publication was made.

2011. If such affidavit be made in an action or special proceeding pending in a court, it may be filed with the court or a clerk thereof. If not so made, it may be filed with the clerk of the county where the newspaper is printed. In either case the original affidavit, or a copy thereof, certified by the judge of the court or clerk having it in custody, is prima facie evidence of the facts stated therein.-1873-388.

2012. An affidavit to be used before any court, judge, or officer of this state may be taken before any officer authorized to administer oaths.-1907-734.

2013. An affidavit taken in another state of the United States, to be used in this state, may be taken before a commissioner appointed by the governor of this state to take affidavits and depositions in such other state, or before any notary public in another state, or before any judge or clerk of a court of record having a seal.-1873-389.

2014. An affidavit taken in a foreign country to be used in this state, may be taken before an ambassador, minister, consul, viceconsul, or consular agent of the United States, or before any judge of a court of record having a seal in such foreign country.-1873-389.

2015. When an affidavit is taken before a judge or, [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, must be certified by the clerk of the court, under the seal thereof.

2019. In all cases other than those mentioned in section two thousand and nine, where a written declaration under oath is used, it must be a deposition as prescribed by this code.

2020. The testimony of a witness out of this state may be taken by deposition in the following cases:

1st. In an action, at any time after the service of summons, or the appearance of the defendant.

2nd. In a special proceeding, any time after a question of fact has arisen therein.

3rd. Where default has been made by any or all of the defendants.-1909-965.

2021. The testimony of a witness in this 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 after a question of fact has arisen therein, in the following cases:

1. When the witness is a party to the action or proceeding or an officer or member of a corporation which is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended;

2. When the witness resides out of the county in which his testimony is to be used, or resides in the county but more than fifty miles distant from the place of trial or hearing by the nearest usual traveled route;

3. When the witness is about to leave the county where the action is to be tried, and will probably continue absent when the testimony is required;

4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend;

5. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required;

6. When the witness is the only one who can establish facts or a fact material to the issue; provided, that the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause.-1905-137.

2022. A deposition taken and returned, as provided in this chapter, may, except as provided in section twent hundred and thirtytwo, be read in evidence by either party at any stage of the action or proceeding in which it was taken, or in any other action

or

proceeding between the same parties or their privies or successors in interest upon the same subject, and is then deemed the evidence of the party reading it; but the court may exclude the same if it appears that the taking thereof was in any material respect unfair. -1907-732.

2023. If an adverse party is in default for not appearing and answering within the time allowed by law or the court, or if, in a special proceeding, some or all of the parties interested have not appeared, the court may authorize a deposition to be taken without the service of any affidavit upon, or the giving of any notice to, the party so in default or not appearing, or may provide that notice be given to him in such mode as to the court may seem proper. -1907-732.

Section

ARTICLE IV.

Manner of Taking Depositions Out of the State.

Section

2024. Deposition of witness out of 2026. Authority of commissioner.

state, how taken.

2025. Proper interrogatories may

be prepared, or may be
waived by the parties.

2027. Trial when postponed for reason of non-return of commission.

2028. Deposition, by whom used. 20252. Deposition of nonresident 2029. Notice dispensed with when witness. Costs for nonwitness resides out of state.

attendance of opposite party

2024. The deposition of a witness out of this state may be taken upon a commission issued from the court under the seal of the court, upon an order of the court, or a judge or a justice thereof, on the application of either party, upon five days' previous notice to the other. If the court is a justices' court, the commission must have attached to it a certificate of the clerk of the superior court of the county in which such justices' court is held, under the seal of such superior court, to the effect that the person issuing the same was an acting justice of the peace at the date of the commission. If issued to any place within the United States, it may be directed to a person agreed upon by the parties, or if they do not agree, to any notary public, judge or justice of the peace or commissioner selected by the court or judge or justice issuing it. If issued to any country out of the United States, it may be directed to a minister, ambassador, consul, vice consul, or consular agent of the United States, or judge of a court of record in such country, or to any person agreed upon by the parties.-1917-280.

2025. The party moving for the commission must, unless it is waived by the other party, attach to the notice of the motion the interrogatories upon which he desires it to be taken. On the hearing of the motion, the other party must propose such crossinterrogatories as he may desire. If the parties do not agree as to the form of the interrogatories, the court must settle their form, but such agreement or settlement does not preclude either party, when the deposition is offered in evidence, from interposing any objection to an interrogatory except as to the form thereof. The settlement of interrogatories may be had at the time of the hearing of the motion, or at any other time which the court may appoint; but the moving party must, if he request it, be allowed two days within which to propose such redirect interrogatories as