121 P. 412 | Cal. Ct. App. | 1911
The petitioner Kibele instituted an action in the superior court of Kern county against the Vesta Oil Company. The defendant, without answering, interposed a demurrer to the complaint, and upon such state of the pleadings proceeded to take the deposition of plaintiff in accordance with the provisions of the sections of the code relating to depositions. Under the advice of his attorney, E. L. Foster, also petitioner herein, plaintiff refused to answer certain questions propounded to him, and, notwithstanding the order of court duly made commanding him so to do, persisted, under the advice of his said attorney, in such refusal to answer. Thereupon petitioners were cited to show cause why they should not be adjudged guilty of contempt, Foster being included in the citation for the reason that he had advised Kibele to disobey the order. The matter coming on for hearing, the court directed that an order be prepared adjudging petitioners guilty of contempt, and committing them to jail for a term of five days, and was about to sign the order, when it was restrained from so doing by an alternative writ issued from this court directing it to show cause why it should not be prohibited from so doing, and meanwhile to desist from further proceedings in the matter.
The sole contention of petitioners urged in support of the granting of the writ is that, as no answer had been filed in the case, there was no issue presented, and hence for this reason only the questions propounded, conceded to be relevant and pertinent to matters alleged in the complaint, were not *722
pertinent to any matter in issue, and therefore plaintiff could not be required as a witness to give his deposition. The case of Kibele v. Vesta Oil Co., wherein defendant sought to take the deposition of plaintiff, was an action, as distinguished from a special proceeding. The statute (Code Civ. Proc., sec.
The alternative writ heretofore issued is dismissed and petitioners' application denied.
Allen, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 21, 1912.