Hamilton Co. v. Goring, 760.
| Decision Date | 18 November 1940 |
| Docket Number | No. 760.,760. |
| Citation | 16 A.2d 334 |
| Parties | HAMILTON CO. v. GORING. |
| Court | Rhode Island Supreme Court |
Appeal from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.
Petition for mandamus by the Hamilton Company against Matthew W. Goring, a notary public, to require the notary to issue body attachments against certain person? for contempt. From a final judgment denying the petition, the petitioner appeals.
Appeal dismissed and final judgment affirmed, and cause remanded.
Hinckley, Allen, Tillinghast & Wheeler and S. Everett Wilkins, Jr., all of Providence, for petitioner.
Walter J. Hennessey, of Providence, for respondent.
This cause is here on the petitioner's appeal from a final judgment of the superior court denying a petition for a writ of mandamus directed to the respondent in his capacity as a notary public. The petitioner was the defendant in an action of the case for negligence then pending in the superior court and entitled Pulsifer v. Hamilton Company. That action was only one of thirty similar actions brought by various former tenants against this petitioner to recover damages resulting from a fire in an apartment house owned or operated by the petitioner. The issues in all of said actions, saving the question of damages, were substantially identical.
The petitioner, as defendant in the Pulsifer action and without order of any court, requested this respondent, a notary public, to summon three persons for the purpose of taking their depositions to be used in that case. These persons, each of whom was the plaintiff in one of the similar actions then pending in the superior court against the petitioner, appeared before the notary public at the time and place fixed in the notice and summons. However, acting upon advice of counsel, who challenged the authority of the notary public to take their depositions, each of them refused to answer any questions. Thereupon the petitioner requested the notary public to issue forthwith body attachments against them for contempt; and upon the notary public's refusal to act as requested, this petition for mandamus was filed in the superior court to compel him to take such action. After a hearing before a justice of that court, a final judgment was entered denying the prayer of the petition and from that judgment the petitioner duly claimed the instant appeal.
The petitioner contends that the authority and duty of the notary public to take these depositions, as well as to issue the body attachments as requested, are derived from General Laws 1938, chapter 539, § 1. This section reads: "Except in equity causes, any justice of the supreme or superior court, justice of the peace or notary public, may take the deposition of any witness, to be used in the trial of any civil suit, action, petition or proceeding, in which he is not interested, nor counsel, nor the attorney of either party, and which shall then be commenced or pending in this state, or in any other state, or in the District of Columbia, or in any territory, government, or country; and in equity causes testimony may be taken by deposition or orally, as provided in § 17 of chapter 528."
The petitioner contends that this section should be construed strictly in accordance with the letter of its provisions; that every person who is not an actual party of record in the pending case in which his deposition is sought must necessarily be classified as a "witness" under § 1; that none of the three persons summoned to give a deposition is an actual party of record in the original case, in which the depositions were sought to be taken; and that therefore each of them must be considered as a "witness" whose deposition could lawfully be taken under this section without previous order of any court. The petitioner further contends that the power of the notary public to enforce his authority is necessarily implied and that the statute imposed upon the respondent a ministerial duty to issue the body attachments, as requested, when these witnesses refused to give their depositions.
We doubt very much if § 1, when read with the chapter as a whole, was ever intended to authorize a...
To continue reading
Request your trial
-
United States v. Minker, 11347.
...interested persons are not covered by such statutes. In re Denning, 1948, 5 Terry 470, 44 Del. 470, 61 A.2d 657; Hamilton Co. v. Goring, 1940, 65 R.I. 459, 16 A.2d 334; Hubbard v. Haynes, 1949, 189 Tenn. 335, 225 S.W.2d 252. We cite these cases principally for their teaching that "witness" ......
-
Ahern v. Superior Court In and For Los Angeles County
...a 'witness' for the purposes of subdivision 6. See Bagley v. District Court, 218 Iowa 34, 254 N.W. 26, 28-29; Hamilton Co. v. Goring, 65 R.I. 459, 16 A.2d 334-335; Hubbard v. Haynes, 189 Tenn. 335, 225 S.W.2d 252; Ex parte Cross, 247 Ala. 85, 22 So.2d 378, 381-382; In re Denning, 5 Terry 47......
-
Rabinowitz v. Bayliss, 943
...here, being the plaintiff in the law action, relying on Tilden-Thurber Corp. v. Farnell, 43 R.I. 42, 110 A. 399, and Hamilton Co. v. Goring, 65 R.I. 459, 16 A.2d 334, takes a contrary view. The facts in those cases will show that they are clearly distinguishable from the instant case and th......
-
Vincent v. John Bowen Co., 1651.
...In construing a statute it is permissible to consider the reasonableness of the result of a particular interpretation. Hamilton Co. v. Goring, 65 R.I. 459, 16 A. 2d 334; Desjourdy v. Mesrobian, 52 R.I. 146, 158 A. 719. Assuming, without deciding, that the amendment to § 13 is procedural rat......