103 Mo. App. 146 | Mo. Ct. App. | 1903
— M. A. Wogan, petitioner herein, brought his civil action in the district court of Pottawatomie county, Territory of Oklahoma, against Annie
Wogan resides about eight miles from the city of Montgomery, in the county of Montgomery, in the State of Missouri. The attorney of the Callahans came from Oklahoma to Missouri and had served on Wogan, at his home in Montgomery county, a notice that the Callahans would, on the nineteenth day of November, at the city of Montgomery, county of Montgomery, State of Missouri, take depositions before W. C. Hughes, a notary public to be used as evidence in the case of M. A. Wogan v. Annie and W. F. Callahan, in the district court of Pottawatomie county, Territory of Oklahoma. The notice was served on Wogan on the seventeenth day of October, and on the same day a subpoena was served on him to appear before the notary public, as a witness in said cause. Wogan communicated by wire with his attorney, who resides in Enid, Oklahoma, and was advised by him not to testify before the notary, as the proceeding was not lawful. He appeared, however, before the notary and was sworn as a witness. In answer to preliminary questions propounded by a local attorney whom he procured (Judge Barnett) he stated he intended to be present at the trial in Pottawatomie county in December, 1903, and had made his arrangements to go there and would be present at the trial to testify, and that his presence was necessary to enable his attorney to properly try the case. After so stating he refused to further depose for the following reasons: first, that no notice of the taking of the depositions had bden served on his attorney; second, the notice served on him is in
The laws of the Territory of-Oklahoma provide that depositions of witnesses may be taken “when the witness does not reside in the county where the action or proceeding is pending” (sec. 358, Statutes of 1893, p. 821); “that depositions may be taken out of the Territory by a judge . . . notary public,” etc. (sec. 361, Statutes of 1893, p. 822); “that prior to the taking of any deposition, unless taken under special commission, a written notice specifying . . . shall be served upon the adverse party, his agent or attorney of record, or left at his usual place of abode. The notice shall be served so as to allow the adverse party sufficient time by the usual route of travel to attend and