State ex rel. Holcomb v. District Court , 54 Mont. 574 ( 1918 )

MR. JUSTICE SANNER

delivered the opinion of the court.

The relator, Rollin P. Holcomb, presented to the Hon. John Hurly, as judge of the district court of Phillips county, a verified petition praying an order to take the testimony of R. D. Sutherland, E. R. Kahla and P. E. Skjerseth before John Hurly, judge of said court, at Saco, Montana, the said Sutherland, as cashier of the First National Bank of Saco, to bring with him certain accounts and records of said bank for use in connection [1] with such testimony. The petition recited that Holcomb “expects to be a party to an action” in said or some other district court of the state, having as adversaries the bank and the Individuals above named; that the controversy relates to the amount of indebtedness due the bank from Holcomb, and upon the trial thereof it will be necessary for him to prove certain facts which are set forth, relative to the execution and purpose of certain promissory notes and relative to payments made by Holcomb upon or in connection with the same and not credited or miscredited to Skjerseth; that the said witnesses reside at Saco and all of them are or have been officers of said bank; that the accounts and records desired are necessary to illustrate and make understandable the testimony sought to be taken. The petition was granted and the order made accordingly, designating February 2, 1918, at 1 P. M. at the courthouse in Malta as the time and place for such examination, and directing subpoenas to issue; subpoenas were issued, but the time and place so fixed were later changed by stipulation to Saco on February 11, 1918.

Thereafter the bank and the individuals so named moved the judge to vacate and set aside the order directing that such testimony be taken, upon the ground “that neither said court nor judge had, nor has either of them, jurisdiction to make or enforce said order,” for that no sufficient showing is made in the petition therefor, and the persons named are not subject to have their testimony taken in advance because they are adverse parties. This motion was granted, the order referred to was vacated and in consequence the testimony sought was not taken, and cannot be taken, until the order to vacate is itself annulled— and it is this which the relator seeks by the present proceeding.

Assuming that the motion to vacate was properly addressed and presented to the authority from whence the order sought to be vacated had come, the fundamental question presented is whether a sufficient showing was made by the relator’s petition to authorize the order of examination. Of this we have not the slightest doubt. The proceeding was under the authority of sections 8042 and 8043, Revised Codes, which provide:

“Sec. 8042. The testimony of a witness may be taken and perpetuated as provided in this chapter.

“Sec. 8043. The applicant must produce to a judge of the district court a petition, verified by the oath of the applicant, stating that the applicant expects to be a party to an action in a court in this state, and, in such ease, the names of the persons whom he expects will be adverse parties; * * * and the name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. The judge to whom such petition is presented must make an order allowing the examination, etc. # * * ”

These requirements are simple, direct and plain. With them the relator’s petition fully complied, and thus he became entitled to the order (13 Cyc. 875, 876; Martin v. Hicks, 6 Hun (N. Y.), 238; In re Livingston, 12 Mo. App. 80; Newton v. State, 21 Fla. 53; Morse v. Grimke, 8 N. Y. Supp. 1). Much discussion and citation of authority are offered to show that something more than the statute requires was necessary, but what other courts may have said touching other statutes or in the effort to construe provisions similarly clear is not convincing. (Rev. Codes, sec. 4.)

Contention is made, however, that under these provisions a [2, 3] party may not be subject to examination. The answer is that an adverse party may be a witness and as such may be examined. In any event, the respondents — viewing them as parties — agreed in effect that their testimony should be taken when they stipulated for a change in the time and place of taking.

■The order to take the testimony having been made on a sufficient showing, it required something more than an attack upon that showing to justify a vacation of the order.

It follows that the order vacating the order to take testimony must be annulled. It is so adjudged and directed, the respondents to proceed accordingly.

Order annulled.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.