In re Subpoenas Served Upon Denning

• Decision Date: 26 July 1948
• Citation: 61 A.2d 657,44 Del. 470
• Parties: In the Matter of the Subpoenas served upon MAT DENNING, M. A. DIBBLE, J. NORMAN McBURNEY, JOSEPH W. NESTOR and J. B. DIETZ, in connection with the action styled "In the Corporation Court for the City of Bristol, Virginia - Universal Moulded Products Corporation v. E. I. duPont de Nemours & Company.&quot
• Court: Delaware Superior Court

61 A.2d 657

44 Del. 470

In the Matter of the Subpoenas served upon MAT DENNING, M. A. DIBBLE, J. NORMAN McBURNEY, JOSEPH W. NESTOR and J. B. DIETZ, in connection with the action styled "In the Corporation Court for the City of Bristol, Virginia - Universal Moulded Products Corporation v. E. I. duPont de Nemours & Company."

Superior Court of Delaware, New Castle

July 26, 1948

Clement Wood (of Hering, Morris, James and Hitchens) and Daniel O. Hastings (of Hastings, Stockly, Walz and Wise) for Universal.

Hugh M Morris and Edwin D. Steel, Jr. (of Morris, Steel, Nichols and Arsht) and Abel Klaw for duPont.

LAYTON J., sitting.

OPINION

LAYTON, J.

Preliminarily I shall dispose of Universal's contention that this Court has no power to quash the issuance of the subpoenae here because the petition seeking their issuance complies in all respects with the provisions of 4707, Revised Code of 1935, as amended. I cannot agree with this argument. A Court always has the inherent power over its own process and, in a proper case, may vacate or quash writs, returns, or other process incorrectly or improvidently issued. Here the right to take the depositions of the very witnesses sought to be examined is challenged. Surely this Court is not without power to determine the fundamental question involved and upon a finding that the witnesses could not be interrogated, then to quash the subpoenae commanding their appearance. Reason and logic compel such a conclusion.

Proceed now to the question whether the deposition of a party can be compelled under 4707, Revised Code of 1935, amended. The Act reads as follows:

"When a commission is issued by any Court of the United States, or of any State, District or Territory in the United States, or of any foreign country for the taking of testimony of witnesses at any place within the State of Delaware before any commissioner, examiner or master or where a notice has been given, or any other proceeding has been taken for the purpose of taking testimony, within the State of Delaware, pursuant to the laws of the state, district, territory or country wherein the Court is located, or pursuant to the laws of the United States, if it is a Court of the United States, the Prothonotary of the Superior Court for any County, on the presentation of a verified petition of the party desiring to take such testimony or his attorney, setting forth such commission, notice or other proceeding, shall issue a subpoena or subpoenas duces tecum for such witness, commanding him to appear before the commissioner, examiner, or master named in the commission, or before the officer designated in the commission, notice or other paper by his title of office, at a time and place stated in the subpoena; and if any witness after being duly served with such subpoena and after being tendered the legal witness fees, including mileage, as provided for attendance before the Superior Court, refuses or neglects to appear or to produce the books and documents required by said subpoena, or after appearing refuses to testify, and such refusal or neglect is proven to the satisfaction of the Superior Court or any Judge thereof in vacation, such Court or Judge may proceed to enforce obedience to the process or punish the disobedience in the same manner as the said Superior Court may proceed, in case of disobedience to process of subpoena issued by said Court, and in addition thereto the party in whose behalf such witness is summoned shall have all rights and actions against such witness as the aggrieved party now has, as provided in Section 1 of this Chapter, provided however, that no subpoena duces tecum shall be issued by the Prothonotary except upon an order of the Superior Court or any Judge thereof in vacation entered upon an application therefor to such Court or Judge, upon such notice to such witnesses as to the Court and Judge may seem proper."

Both when Section 4707 was passed in its original form (Vol. 30 Delaware Laws) and later as amended (Vol. 46 Delaware Laws) it was the law of this State that a party could not be examined upon deposition. Quill v. Carpenter, (1939) 40 Del. 1, 1 Terry 1, 5 A.2d 241; Levy v. Kirby, 22 Del. Ch., 274, 196 A. 816. Though in the Quill case the word "witness" as it appeared in our then Superior Court rules, and not in Section 4707, was being construed, the result must be the same. It could not be thought that our Legislature intended to permit greater latitude in the examination of our citizens in cases originating without, than within, this jurisdiction. Moreover, a cardinal rule of statutory construction is that where one jurisdiction enacts a statute in the exact, or...