day of SS. J. F., being duly sworn, says: That he is a citizen of the United States and of the state of and over the age of twenty-one years; that he is not interested in the within-named matter, and is competent to be a witness upon the hearing thereof; that on the 19, he served the within original citation upon X. Y., the executor of the last will and testament of L. M., deceased, in the city of [by showing him said original and delivering a true copy thereof to him]; that affiant also served upon said X. Y., as such executor, personally, a copy of the order to show cause pursuant to which said citation was issued, and a copy of the petition mentioned in said citation, by delivering copies of each thereof to, and leaving the same with, the said X. Y. , county of [Jurat.] [Affiant's signature.] § 485. DEPOSITIONS. FORM No. 1141-Stipulation of counsel to take depositions. of [Title of court and cause.] It is hereby stipulated by the parties hereto, that the deposition. a witness on behalf of the plaintiff [or defendant] in this action [or proceeding], be taken before and for the county of , in the state of , a notary public in at his office in said 19 commencing at county of on the [state the time]; and it is further stipulated, that when taken and certified to by said officer, and transmitted to the clerk of said court, such deposition may be read by either party to the action [or proceeding] as evidence on the trial of the action [or proceeding], sub ject, however, to all legal objections and exceptions that could be taken in case the witness was personally present and testified in the action. [Date.] A. B., Attorney for plaintiff. C. D., Attorney for defendant. FORM No. 1142-Affidavit upon taking deposition of defendant as witness for plaintiff. [Title of court and cause.] State of California, :}s SS. being duly sworn, deposes and says: That he is one of the attorneys for plaintiff in the above-entitled action; that the summons in said action has been heretofore served upon ant in said action; that said defendant, defend is a party to said action, and has heretofore appeared and answered therein; that said in said county nia, and within twenty-five miles of the city of of and within said distance of the office of a notary public in and for said County, before whom the deposition of said defendant is noticed to be taken. {Jurat.] [Signature of affiant.] FORM No. 1143-Affidavit for taking the deposition of a resident witness. [Title of court and cause.] [Venue.] A. B., being duly sworn, deposes and says: That he is the plaintiff [or the defendant] in the above-entitled action [or proceeding]; that the summons in the action has been served [or, that the defendant has appeared therein; or, in a special proceeding, that a question of fact has arisen therein]; that C. D. is a material witness for the plaintiff [or the defendant] for the trial of the action [or proceeding]. [Here state the facts showing the case to be one in which a deposition may be taken as provided in the code.] [Signature of affiant.] [Jurat.] FORM No. 1144—Affidavit and application for commission for the taking of the deposition of a non-resident witness. [Title of court and cause, or proceeding.] [Venue.] A. B., being duly sworn, says: That he is the attorney for the plaintiff [or petitioner] in the above-entitled action [or proceeding]; that C. D. is a material witness for the plaintiff [or petitioner] in said action [or proceeding], and that said witness does not reside in this state, but resides at in the county of in the state [or territory] of Affiant therefore asks that a commission issue out of this court to take the deposition of said witness, and that there be attached to such commission interrogatories and cross-interrogatories settled by the Hon. , judge of said court, on which such deposition is to be taken; that the annexed are interrogatories proposed by the plaintiff on which such deposition is to be taken. [Jurat.] [Annex list of proposed interrogatories.] FORM No. 1145-Notice of taking of deposition. [Title of court and cause.] [Signature of affiant.] Notice is hereby given, that the deposition of K. L., a witness in behalf of the plaintiff [or defendant] in this action [or proceeding], will be taken before M. N., a notary public [or other officer authorized to take depositions, designating], at his office in the city [or town] of , county of , in this state, commencing at o'clock M., of the day of 19 ; and, if not completed on that day, that the taking of the same will be continued thereafter, and from day to day, and over legal holidays, until such deposition is fully taken. And you will further take notice, that the annexed is a copy of the affidavit [and order] showing that this is a proper case, and authorizing the taking of said deposition. [Date.] [Signature of attorney for plaintiff or defendant.] [Address to the attorney of the adverse party.] FORM No. 1146-Commission to take deposition of witness. [Title of court and cause, or proceeding.] The people of the state of to , greeting: court of the Whereas, it appears to the judge[s] of our is a material witness in a certain action now court, between , plaintiff, and pending in our said defendant, [or in the matter or proceeding above entitled,] we, in confidence of your prudence and fidelity, have appointed, and by these presents do appoint, you a commissioner to take the deposition of said witness, and therefore we authorize and empower you, at certain days and places, to be by you for that purpose appointed, diligently to examine said witness in answer to the interrogatories annexed to this commission, and upon his corporal oath, first taken before you, which oath you are hereby authorized to administer, and cause the said examination of the said witness to be reduced to writing and subscribed by the said witness, and then certified and returned [the same annexed to this commission] unto the clerk of court aforesaid, with all convenient speed, enclosed in a sealed envelope directed to said clerk, and forwarded to him by United States mail or other usual channel of conveyance. our FORM No. 1147-Instructions to commissioner. 1. All the commissioners named in the commission shall have notice of the time and place of executing it; and if any of them do not act, let the fact that they were notified, or could not be notified, and the reason for their not acting, be stated. 2. The commission must be executed by [or commissioners] named therein. the commissioner 3. The acting commissioner [s] will examine the witnesses separately, after publicly administering to such the following oath or affirmation: "You do solemnly swear that the evidence you shall give in this issue, pending between shall be the and truth, the whole truth, and nothing but the truth; so help you God.” [Or, if the witness shall declare that he has conscientious scruples against taking an oath, or swearing in any form, he shall be permitted to make affirmation according to the following form: "You do solemnly declare (or affirm)," as above.] 4. The general style or title of the depositions must be drawn up in the following manner: "Deposition of examined, the witness, produced, sworn [or affirmed], and day of 19 at tue of a commission issued out of the state of issue between under and by vircourt of the county of in a certain cause therein depending, and at . plaintiff, and defendant, as follows: "A. B., of [insert his place of residence and occupation], aged years and upwards, being duly and publicly sworn [or affirmed], pursuant to the directions hereto annexed, and examined on the part of the doth depose and say as follows, viz.: "1. To the first interrogatory he saith: [Insert the witness's answer.] "2. To the second interrogatory he saith: [Give witness's answer; and so on throughout, as to the other interrogatories.]" If he can not answer, let him say he does not know. 5. If there be any cross-interrogatories, the witness will go on thus: "First-To the first cross-interrogatory, he saith [giving answer, and so on throughout, as to other cross-interrogatories]." 6. When the witness has finished his deposition, let him subscribe it, and the acting commissioner [s] will certify as follows: "Examination taken, reduced to writing, and by the witness subscribed and sworn to, this 19, before Commissioner [s]." day of 7. If any papers or exhibits are produced and proved, they must be annexed to the depositions in which they are referred to, and be subscribed by the witness, and be endorsed by the acting commissioner [s] in this manner: plaintiff, and "At the execution of a commission for the examination of witnesses, upon issues herein between defendant, this paper [describe the same] was produced and shown to [insert the witness's name], and by him deposed unto at the time of his examination before Commissioner [s].” |
