St. John v. Wayne Circuit Judge ( 1910 )

Ostrander, J.

(after stating the facts). It is the contention of relator that a question of law is presented, and that it is immaterial what conclusions of fact were reached by the respondent. No part of the answer appears in the printed record. Nor could we have known, except by reference to the files in the office of the clerk of this court, what answer was made by respondent. We discover no irregularity in the practice pursued by relator in the proceeding to secure the deposition. The deposition of a party to an action may be taken at the instance of the opposing party. Young v. Kent Circuit Judge, 116 Mich. 10 (74 N. W. 206). The witness attended at the time and place specified in the notice, and if the testimony called for had been given, and if upon the trial of the cause conditions warranted the reading of the deposition, we perceive no reason for excluding it for failure to comply with the statute provisions. We mean by this that the objection made by the witness, namely, that relator did not before proceeding with the examination offer proof, by affidavit or otherwise, that a statute reason for taking the examination, as stated in the notice, existed in fact, would not be a valid objection to the use of the deposition at the trial. If the witness had refused to attend before the commissioner pursuant to the notice, she might have been compelled to do so by the order or process of the court, “in the same manner as witnesses may be compelled to appear and testify in court.” We do not feel called upon to determine whether, if the witness had refused to attend, the court in compelling attendance might have acted upon the showing which was made, or whether it would have been improper to require a further showing.

When a court is asked to bring before it, by its process, a witness who has refused in another place to answer questions, for the purpose of meeting charges of misconduct and contempt in so refusing, the court may consider the character of the interrogatories to which answers were refused. In this case the examination of the witness was made a part of the petition for the attachment. It is returned to this court as a part of the answer of respond* ent. The ruling of the circuit judge with respect to the precise issue presented amounted to no more than this: That relator must make it appear that the testimony called for was material. And while the objection that it was immaterial was not made before the commissioner, that fact did not preclude the judge from refusing to compel answers to questions so framed as to clearly indicate that relator was seeking, not only to trace the disposition made of a certain sum, or of certain sums, of money admitted by her to have been at some time in her possession, but to incriminate herself with respect to its disposition. In other words, we are of opinion that the circuit judge abused no discretion in requiring that relator advise him of the materiality of the testimony sought to be elicited before compelling the witness to answer the interrogatories.

The writ of mandamus will not be issued to set aside his ruling.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.