56 P. 644 | Or. | 1899
delivered the opinion.
This action was originally commenced in the Justice’s Court of Portland District, Multnomah County, to recover damages for an alleged unlawful taking and conversion of personal property. It is averred in the complaint that one C. C. Palmer having duly obtained a judgment in the Justice’s Court of East Portland Dis
Either party may take the testimony of a witness in this state by deposition in an action at law after the service of the summons or the appearance of the defendant, before any person authorized to administer oaths, on giving the adverse party notice of the time and place of examination, the name of the officer and the witness. Such notice shall be at least three days, unless the court or judge by order prescribe a shorter time : Hill’s Ann. Laws, § 823. A notary public is a person who is authorized to administer oaths: Id. § 2325. The subpoena was issued in pursuance of the authority conferred by Subd. 3 of Section 790, Hill’s Ann. Laws, and duly served by a person over eighteen years of age: Id. § 792. Burckhardt was, therefore, obliged to obey the command of the writ directed to him, and requiring his attendance as a witness in said action on plaintiff’s behalf: Id. § 846. “Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer before whom he is required to attend or the refusal takes place, and if the witness be a party, his complaint, answer, or reply may be stricken out:” Id. § 797. The transcript shows that there has been a strict compliance with all the statutory provisions necessary to produce Burckhardt’s deposition, and for his refusal to testify as a witness the court pos
It is argued that if a party, at the instance of his adversary, can be compelled to give his deposition before a person who has not been commissioned by the court in which the action is pending, and in the absence of an affidavit showing the materiality of his testimony, such a method of preparing for the trial would be tantamount to a fishing excursion for evidence to support a doubtful cause. The reasons assigned by defendant’s counsel seem cogent, but would be more appropriately addressed to the legislative assembly, in whom the power of regulating the mode of procedure in such matters is lodged by the organic law of the state. If such a rule becomes oppressive, the best method of securing its repeal is by the enforcement of its provisions. As it now stands, each party to an action is afforded an opportunity to ascertain prior to the trial his adversary’s views of the matters in issue.