44 Kan. 105 | Kan. | 1890
The opinion of the court was delivered by
On March 29, 1890, H. B. Hughbanks, a resident of Osage City, in Osage county, went on a business trip to Emporia, in Lyon county, and while temporarily there
When the subpena was served on Hughbanks, he demanded his fees, and the constable who served the subpena produced and tendered to Hughbanks the sum of $1.50, as witness fees, which, after some hesitation, he declined to receive. He failed to appear before the officer on April 2, 1890, in obedience to the command of the subpena, and thereupon, at the instance of the party seeking to take his deposition, he was attached for contempt and taken before the justice of the peace issuing the subpena, who, after an investigation and trial, found him guilty of contempt in disobeying the subpena, and adjudged that he should pay a fine of $1, and the costs of the' attachment proceedings, taxed at $14, and that he be committed until the fine and costs were paid. Befusing to pay the fine, he was imprisoned, and has applied to this court to be released upon the writ of habeas corpus.
The petitioner bases his right to a discharge upon two grounds: First, That he is a resident of Osage county and was not obliged to attend and give his deposition in Lyon county; and second, that the tender of the fees demanded by him was insufficient to compel obedience to the subpena.
The question whether a person may be subpenaed and required to attend to give his deposition at some future time in some county distant from the one in which he resides, is the pi’incipal and controlling one in the case. It is the general theory of the code that a witness in a civil case shall not be compelled to travel beyond the county of his residence either to testify orally in court or to give his deposition to be used in court. Section 328 provides: “A witness shall not be compelled to attend for examination on the trial of a civil action except in the county of his residence, nor to attend to give his deposition out of the county where he resides or where he may be when the subpena is served upon him.” Provision is made that the deposition of a witness may be used in the trial of an
But the respondent now contends that under § 328, Hugh-banks, who happened to be in Emporia for a day, and was there subpenaed to attend before a justice of the peace on a future day, can be compelled to return from his residence in Osage county to Emporia and give his deposition. The parties in whose behalf the deposition was to be taken were aware of his place of residence, and that his presence in Emporia was temporary, and also that his deposition, which was wholly for 'their benefit, could be taken at Osage City in the manner provided by statute without hindrance or difficulty. If a witness can be subpenaed to attend four days in the future, as in this case, he can be subpenaed many days thereafter, and if he is obliged to return from his residence, thirty miles away, in another county, he may be required to travel across the entire state, a distance of four hundred miles. Under this theory, a resident of Wallace county who chanced to be in Wyandotte county might be there subpenaed to attend and give his deposition before a justice of the peace of Wyandotte county thirty days thereafter, thus obliging the witness to travel a distance of eight hundred miles in going and returning; and all this
He will be discharged.