This is a petition for a writ of mandamus to require the Superior Court of Sacramento County to issue a commission to take the testimony of a witness residing in Waukegan,- Illinois, to be used on a motion for new trial now pending in a divorce suit in that court. The sufficiency of the allegations of the petition is raised by a general demurrer only. No answer was filed, and permission to answer in the event that the demurrer should be overruled was not requested.
The petition recites in detail the proceedings which оccurred in the suit for divorce between Irene E. Moran, as plaintiff, and Arthur R. Moran, as defendant. It is alleged that on motion of the defendant an interlocutory decree of divorce which was rendered against him on the ground of еxtreme cruelty, was set aside, and he was permitted to, and did, file a cross-complaint in which he asserted that the purported marriage between himself and Irene was void because she was formerly married to Paul R. Hendricks, who is still alive, and from whom she was never divorced. The cross-complaint prays that Irene be denied a divorce and that Mr. Moran be granted a decree of annulment of their purported marriage under the provisions of section 82 of the Civil Code.
It is further alleged in the petition that the defendant in the divorce case continued, to the time of the second trial of that case, to exercise extraordinary diligence to locate the witness Hendricks, but that he was unable to discover his whereabouts, and was therefore forced to go to trial without the benefit of his testimony; that no evidence of a divorce between Irene and Mr. Hendricks was adduced at the trial, еxcept that she testified she had neither seen nor heard from her former husband for several years, which raised the presumption under section 1963, subdivision 26, of the Code of Civil Procedure, that he was dead.
Upon that evidence an interlocutory decree of divorce was again rendered March 4, 1940, against the defendant on the ground of extreme cruelty. It was further determined that the defendant should take nothing by his cross-complaint. He promptly served notice of intention to move' for a new trial upon several grounds, including that of newly discovered evidence. In support of that motion, an affidavit was *331 filed, in which it was averred that since the divorce case was determined the defendant discovered that Paul R. Hendricks, the former husband of Irene, is alive and that he now resides in Waukegan, Illinois; that he refuses to make an affidavit of his marital status with Irene; that after the exercise of extraordinary diligencе he was unable to locate Hendricks until after the time of the decision in the divorce case, and he was therefore compelled to go to trial without his testimony, and that his evidence will not be cumulative, but on the contrаry it is material and necessary to establish his marital status with the plaintiff, Irene, which is absolutely essential from which to determine the merits of that cause on the issue as to whether a divorce or an annulment should be granted. Based on thаt notice of motion for new trial and upon the affidavit of merits the defendant immediately served and filed his notice of motion, under sections 2020 and 2024 of the Code of Civil Procedure, for a commission to take the testimony of Paul R. Hеndricks in Waukegan, Illinois. That motion was also supported by an affidavit reciting facts similar to those contained in the affidavit on motion for a new trial. All of said notices and affidavits are attached as exhibits to the petition in this рroceeding. At the hearing of the motion for a commission to take testimony, both parties to the divorce suit were represented. Mr. Johnson, one of the attorneys for the defendant, was sworn and testified to similar facts. No сounteraffidavits were filed in behalf of the plaintiff, and no evidence was adduced to rebut the showing made by the defendant. The fact that Hendricks is now living stands uncontradicted, and the record in the divorce proceeding is therеfore devoid of evidence that Irene and Mr. Hendricks were ever divorced. Upon that showing the court denied defendant’s application for a commission to take testimony. This petition for a writ of mandamus was then presented.
We are of the opinion the petition for a writ of
mandamus
sufficiently alleges fаcts requiring the issuance of a commission to take testimony of a material witness residing in another state under the provisions of sections 2020 and 2024 of the Code of Civil Procedure. The only defect relied upon is the presencе of certain statements in the petition which may be deemed to be conclusions, and that the petitioner failed to affirmatively state positively that the evidence
*332
of the witness would be favorable to him. These may be deemed to be mere uncertainties. The demurrer is general in its nature. Mere defects of uncertain or indefinite-allegations of a pleading may be raised only by a special demurrer.
(Barber v. Mulford,
In the absence of evidence to the contrary, the presumption of the validity of a final marriage, which is consummated by means of a formal cerеmony, is superior to the mere presumption that a prior marriage continues in force. The burden of proof is on the person who challenges the validity of a subsequent marriage to prove not only the former marriage, but also to show that it has not been dissolved by the death of the absent spouse or by a decree of divorce or annulment.
(Wilcox
v.
Wilcox,
*333 “A subsequent marriage contracted by any person during the life of a former husband or .wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless:
“ (1) The former marriage has been annulled or dissolved.
“(2) Unless such former husband or wife is absent, and not known to such person to be living for the space of five successive years immediately prеceding such subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted. In either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal.” (Italics ours.)
It is evident from the language of the preceding section that the validity of a subsequent marriage depends upon the facts and circumstances under which it was consummated, and whether the former marriage had been actually dissolved.
It follows that еvidence in a divorce suit is competent to rebut the presumption raised by section 61 of the Civil Code or section 1963, subdivision 26, of the Code of Civil Procedure, by proving, if possible, that the spouse to whom one of the parties wаs formerly married, is actually living and that the prior marriage was not dissolved. Positive or direct evidence is preferable to indirect evidence or mere presumptions of law. The validity of the last marriage is absolutely dependent upon the facts sought to be established in this action. The nature of the decree which is proper to be rendered in the divorce suit depends upon the question as to whether the last marriage was valid or invalid. If it was vаlid it may be proper to render a decree of divorce. If it was invalid possibly a decree of annulment should be entered. Upon a satisfactory showing of due diligence and the assurance of proving by direct and pоsitive evidence facts which are so vital to the determination of a pending suit, the statute appears to require the issuance of a commission to take the testimony of such a material witness.
Section 2020 of the Codе of Civil Procedure is unqualified in its declaration that:
1 ‘ The testimony of a witness out of this state may be taken by deposition in the following cases:
*334 “1st. In an action, at any time after the service of summons, or the appearance of the defendant. ’ ’
Since the deposition may be taken “at any time” after the service of summons, it follows that it may be taken for use on a motion for new trial, as well as at any other stage of the case before its final determination. Section 2024 of the Code of Civil Procedure authorizes that deposition to be taken by either рarty to the action upon five days’ notice by order of the court or a judge thereof.
It has been held that
mandamus
is the proper proceeding to require the issuance of a commission to take testimony out of the state.
(San Francisco Gas & Elec. Co.
v.
Superior Court,
It has been repeatedly said that a court has no discretion, upon an аpplication which complies with the statute, to refuse to issue the commission to take testimony. (San Francisco Gas (& Elec. Co. v. Superior Court, supra; Levin v. Superior Court, supra.)
The respondent argues that since the petitioner has failed to positively assert that the evidence of Hendricks will be favorable to him or that it will show a dissolution of the marriage between him and Irene did not occur, it would therefore be a useless and idle act for the court to direct the issuance of the commission. That evidence appears to be *335 as essential to the determination of the plaintiff’s rights in that suit as it is to those of the defendant.
Since no application was made to file an answer to the petition in this proceeding in the event that the demurrer should be overruled, we assume that an allegation of further facts on the part of the respondent is not desired. Pursuant to rule XXVI, section 3, of the Rules for the Supreme Court and the District Courts of Appeal, the demurrer is overruled without leave to answer.
The writ of mandamus is granted and the court is directed to issue the commission to take testimony as prayed for.