State ex rel. Everett v. Bourne

• Decision Date: 02 November 1891
• Citation: 21 Or. 218,27 P. 1048
• Parties: STATE ex rel. EVERETT v. BOURNE.
• Court: Oregon Supreme Court

27 P. 1048

21 Or. 218

STATE ex rel. EVERETT v. BOURNE.

Supreme Court of Oregon

November 2, 1891

Appeal from circuit court, Multnomah county; ERASMUS D. SHATTUCK Judge.

Letters rogatory were issued by the superior court of Suffolk county Mass., to the circuit court of Multnomah county, Or requesting that the latter require Jonathan Bourne, Jr., to appear before a commissioner appointed by the former, and answer interrogatories. From an order committing said Bourne for contempt in disobeying a writ issued in pursuance of the letters rogatory, he appeals. Affirmed.

STATEMENT BY THE COURT. The following is a copy of the dedimus potestatem issued out of the superior court of Suffolk Mass., authorizing the taking of the depositions of Jonathan Bourne, Jr.: "Commonwealth of Massachusetts. [ The Superior Court Seal.] To any commissioner appointed by the governor of said commonwealth of Massachusetts, or to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the state of Oregon, greeting: Assured by your prudence and fidelity, we do, by these presents, appoint and empower you to take the deposition of Jonathan Bourne, Jr., of Portland, in said state of Oregon, to be used in a suit now pending in our superior court, between Annie B. Everett, as plaintiff, and John Stetson, Jr., as defendant, and, on certain days to be by you appointed, to cause the deponent to come before you and him carefully examine, on oath or affirmation, in answer to several interrogatories hereto annexed; and reduce the examination, or cause the same to be reduced, to writing in your presence; and, after such deposition shall have been reduced to writing, it shall be carefully read to or by deponent, and shall then be subscribed by him. You shall permit neither party to attend at the taking of the deposition, either himself or by any attorney or agent, nor to communicate by interrogatories or suggestions with the deponent, while giving his deposition in answer to the interrogatories annexed to this commission; and you shall take such deposition in a place separate and apart from all other persons, and permit no person to be present at such examination, except the deponent and yourself, and such disinterested person (if any) as you may think fit to appoint as clerk to assist you in reducing the deposition to writing; and you shall put the several interrogatories and cross-interrogatories to the deponent in their order, and take the answer of the deponent to each, fully and clearly, before proceeding to the next, and not read to the deponent, nor permit the deponent to read, a succeeding interrogatory until the answer to the preceding has been fully taken down. Of this, our writ, with your doings by warrant of the same, you will make return under seal into our said court with all convenient expedition. Witness the Honorable ALBERT MASON, chief justice of our said court, and the seal thereof at our city of Boston, on the twenty-first day of November, in the year of our Lord one thousand eight hundred and ninety. JOS. A. WILLARD, Clerk."

On the 27th day of June, 1891, a paper was served on the appellant of which the following is a copy: "Superior court--November, 1890. Annie B. Everett, Plaintiff, vs. John Stetson, Defendant. Suffolk--ss.: To Jonathan Bourne, Jr.: In the name of the state of Oregon: The undersigned notary public, having been duly designated and appointed by the superior court of Suffolk county, Massachusetts, to take your testimony in a case now pending in said court, wherein Annie B. Everett is plaintiff, and John Stetson, Jr., is defendant: Now, therefore, you are hereby commanded to appear before the undersigned commissioner, at his office, room No. 11 in the First National Bank building, on the south-east corner of First and Washington streets, in the city of Portland, county of Multnomah, state of Oregon, on the 30th day of June, 1891, at 9 o'clock in the forenoon of said day, to give evidence in the above-entitled cause on the part of plaintiff. Witness my hand and seal this 27th day of June, 1891. [ Notary Seal.] A.C. EMMONS, Notary Public and Commissioner."

Thereafter, on the 5th day of August, 1891, the superior court of Suffolk, Mass., issued the following letters rogatory: "Commonwealth of Massachusetts. Suffolk--ss.. Superior court. To the circuit court within and for the county of Multnomah, in the state of Oregon, or any judge or tribunal having jurisdiction of civil cases in the city of Portland, in the county of Multnomah: Whereas, in our superior court, in the case of Annie B. Everett vs. John Stetson, Junior, the plaintiff filed in said court interrogatories to take the deposition of Jonathan Bourne, Junior, of said Portland; and whereas, after due notice, the defendant filed certain cross-interrogatories, and thereupon a commission to take the deposition of said Bourne was issued by this court, with the several interrogatories and cross-interrogatories thereto annexed, and afterwards A.C. Emmons, Esquire, of said Portland, a duly-authorized notary public, commissioned and authorized to take the said deposition in pursuance of said commission, issued his subpoena to said Bourne to appear before him and give answer to the said interrogatories, and said Bourne, although duly served and his fees paid him, refused to appear or show any cause why he did not appear at the time and place fixed, and said commissioner, doubting his authority to compel the attendance of said Bourne, has returned said commission into our superior court; and it appearing to us that, without the testimony of said Bourne, justice cannot completely be done between the parties: We therefore request you that, in furtherance of justice, you will afford your aid in the examination of said witness by said commissioner, upon said commission, upon the interrogatories thereto annexed; that you will, by the usual and proper process of your court, cause the said Bourne to appear before said commissioner at a time and place by you to be fixed, and him examine on oath or affirmation to the several interrogatories to said commission annexed, and that you will cause his deposition to be committed to writing, and returned, and duly closed and sealed up, and return with these presents; and we shall be ready and willing to do the same for you in a similar case, when required. Witness: ALBERT MASON, Esquire, Justice of our said Superior Court at Boston, in said County of Suffolk, this fifth day of August, A.D.1891. JOS. A. WILLARD, Clerk. [ Seal of the Superior Court.]"

On the 17th day of September, 1891, the circuit court of Multnomah county, Or., entered upon its journal the following order "And now, at this day, upon presentation to this court of letters rogatory from the superior court of Suffolk county, Massachusetts, setting forth, among other things, the issuance out of said court of a commission in a cause therein pending between Annie B. Everett, as plaintiff, and John Stetson, as defendant, directed to A.C. Emmons, Esq., of Portland, notary public, as commissioner to take the deposition of Jonathan Bourne, Jr., of Portland, in answer to interrogatories and cross-interrogatories attached to said commission, and setting forth that said Bourne refused to appear before said commissioner, but made default, and representing that without the testimony of said Bourne justice cannot be completely done between said parties, and requesting us that in furtherance of justice we afford our aid in the examination of said witness by said commissioner, upon said commission, under said interrogatories, and that by the usual proper process of our court we cause said Bourne to appear before said commissioner at a time and place by us to be fixed, and him examine on oath or affirmation to the several interrogatories to said commission annexed, and that we cause his deposition to be committed to writing, and returned, and duly closed and sealed up, and returned with said letters, and offering to do the same favor for us in a similar case when required, it is therefore ordered that in accordance with said request, a writ in due form issue, out of this court, directed to the sheriff of this county, and reciting the above facts, and directing said sheriff to summon said Jonathan Bourne, Jr., to appear before said A.C. Emmons, Esq., notary public, commissioner, at his office in the city of Portland, First National Bank building, corner First and Washington streets, upon Monday, September 21, A.D. 1891, at 10 o'clock A.M., and upon such further time or times to which the taking of said deposition may be adjourned by said commissioner, then and there to testify before...