State v. Bourne

21 Or. 218 | Or. | 1891

Strahan, C. J.

It sufficiently appears from the foregoing statement that the superior court of Suffolk county, Massachusetts, where the action of Annie B. Everett v. John Stetson is pending trial, endeavored through the usual instrumentality of a commission on a dedimus potestatem to obtain the evidence of the witness, and failed. Thereafter, letters rogatory were issued under which the circuit court of Mult-nomah county has taken these proceedings which have resulted in this appeal.

The real question here is one of jurisdiction. At the outset it is conceded that there is no statute in this state expressly and in so many words conferring jurisdiction on the circuit courts of this state in such cases. The only statute haying any bearing on the subject is section 790, Hill’s Code, which provides: “The subposna is issued as follows: * * * 2. To require attendance before a commissioner appointed to take testimony by a court of the United States, or a territory thereof, a sister state, or any foreign country, by any clerk of a court of record in places within the jurisdiction of such court.” By this section a clerk of a court of record is authorized to issue a subpoena requiring the attendance of a witness before a commissioner appointed to take testimony by a court of a sister state, and the subpoena, when issued, is the process of the court whose clerk issued it, and not of the clerk. But counsel take the objection here for the first time, so far as the record discloses, that the paper issued by the clerk of the circuit court of Multnomah county, and served upon Bourne, is not a subpoena, and therefore he was not bound to obey it; and he further insists that as no statute expressly confers jurisdiction on the circuit court in such cases, it is without authority.

These objections may be considered together. This question is one involving the comity of states, grows out of necessity, and is recognized by the law of nations. In discussing it, therefore, no narrow or merely technical view of the law is permissible. The constitution of the state (art. VII, § 9,) vests in the circuit courts all the judicial power of the state not vested by the constitution or laws consistent therewith exclusively in some other court. If the authority to require the attendance of a wittness before a commissioner appointed by a court of a sister state is a judicial power, and not being vested exclusively in some other court, then the same belongs to the circuit courts; and even if the constitution were silent upon the subject, we think the result would be the same. In speaking of this method of obtaining evidence,"! Greenleaf’s Ev. § 320, says: * * * “This method of obtaining tesitmony from witnesses in a foreign country has always been familiar in the courts of admiralty; but it is also deemed to be within the inherent power of all courts of justice. For, by the law of nations, courts of justice of different countries are bound mutually to aid and assist each other for the furtherance of justice; and hence, when the testimony of a foreign witness is necessary, the court before which the action is pending may send to the court within whose jurisdiction the witness resides, a writ either patent or close, usually termed a letter rogatory, or a commission sub mutum vioissiiudinis obtentu ac in juris subsidium from those words contained in it.” The same principle is stated in Weeks on Depositions, § 128, and many authorities cited. And the practice under such letters is stated and discussed in Wharton’s Conflict of Laws, § 722 et seq. (3 Wharton’s International Law Digest, § 41, et seq.- Nelson v. U. S. 1 Pet. C. C. 235; Kuehling v. Leberman, 9 Phila. 160; In re Jenckes, 6 R. I. 18.) These authorities sufficiently show that the matter under consideration is one of judicial cognizance. It appertains to the administration of justice in its best sense, and its exercise is now common and unquestioned among civilized nations. It is true the duty may not be imposed by positive local law, but it rests oh national comity, creating a duty that no state could refuse to fulfil without forfeiting its standing among the civilized states of the world.

Aside, then, from the statute quoted above, we think the circuit court of Multnomah county had jurisdiction over this case; but the statute no doubt was designed to cover such cases. The clerk of the court in issuing the writ of subpoena or other writ only exercises his appointed functions under the law, but the writ when issued is the writ of the court authenticated by its seal and over which it has jurisdiction. All writs so issued protect the officer executing them, and the court has power to prevent all abuses growing out of their use. As a necessary incident to this, it may punish all disobedience or resistance to its process and orders. This power inheres in the court whether conferred by express statute or not.

Again, it was argued that the writ which the clerk issued and which was served on the appellant requiring him to appear and submit to an examination was not a subpoena. Two answers may be made to this objection: The first is, that no such objection was taken in the court below. The appellant did not there object that the writ was illegal, or one that he was not bound to obey, because the writ was defective; but his objection went to the jurisdiction of the court. The one now made goes to the means or manner of its exercise. But whether taken here or in the court below, the objection could not be sustained. For all the purposes of this proceeding, the writ which was served upon the appellant was a subpoena. It is true it is not in the form in common use in the courts of this state, but it required the attendance of a witness (Hill’s Code, § 789), and that is sufficient.

It was finally objected by the appellant that the court in Massachusetts had no authority to issue the letters rogatory. The ground of this objection is not clear to us; but we are unable to find any satisfactory foundation upon which it could be placed. We cannot- review the action of that court or call in question its jurisdiction over the case pending before it. Any excess of authority or irregularity in its exercise must be made in that court, and not here. It is sufficient for us to know that it has by letters rogatory asked the aid of one of the courts of this state in obtaining the testimony of a.witness domiciled here in a case pending before it and over which it had assumed jurisdiction.

We find no error in the judgment appealed from, and th same is therefore affirmed.