State ex rel. Westerheide v. Shilling, Case Number: 30573

• Decision Date: 10 March 1942
• Docket Number: Case Number: 30573
• Citation: 1942 OK 106,123 P.2d 674,190 Okla. 305
• Parties: STATE ex rel. WESTERHEIDE et al. v. SHILLING, Dist. Judge
• Court: Oklahoma Supreme Court

1942 OK 106

123 P.2d 674

190 Okla. 305

STATE ex rel. WESTERHEIDE et al. v. SHILLING, Dist. Judge

Case Number: 30573

Supreme Court of Oklahoma

Decided: March 10, 1942

Syllabus

¶0 1. STATUTES--Rule that statue is presumed to have been adopted from another state with construction thereof by highest court of state not applicable where decisions of such court conflict nor where courts of adopting state have for many years given statute their own interpretation.

The rule that the Legislature, in adopting a statute from another state, is presumed to have adopted the construction placed upon the statute by the highest court of the state from which the statute was adopted, does not apply where there is a conflict in the decisions in the other state; nor will the rule be followed where the courts of the adopting state have for many years given the statute their own interpretation.

2. DEPOSITIONS--Right to take depositions and procedure therefor governed by statutory provisions which courts must follow.

The right to take depositions, the procedure for taking them, and the time when they may be taken, are governed by statute, and the courts have no right to impose conditions or restrictions on their taking not found in the statutes.

3. DISCOVERY-- Right to take deposition of adverse party not restricted by statutory provision limiting right to use depositions.

The provisions of 12 O. S. 1941, §§ 433, 447, limiting the right to use depositions do not affect or restrict the right to take depositions given by 12 O. S. 1941, §§ 383, 434.

4. SAME-- Statutory provision for compelling adverse party to testify by deposition.

Any party to a civil action may, after summons is served on the defendant, compel any adverse party to testify, by deposition, in the same manner and subject to the same rules, as other witnesses. 12 O. S. 1941, §§ 383, 434.

5. SAME--Untenable reasons for party's refusal to testify by deposition.

A party may not refuse to testify by deposition (1) because he resides in the county, is in good health, does not intend to leave the county or state, and intends to be present at the trial, or (2) because the party taking the deposition does not agree to be bound by the deposition or to use it at the trial, or (3) because the party taking the deposition desires to use it in preparing his pleadings or in preparing for trial, where the statute authorizing the taking of depositions contains no such restrictions on the taking of the deposition of a party.

6. SAME--Former decision disapproved.

The language found in Guinan v. Readdy, 79 Okla. 111, 191 P. 602, which is in conflict with this opinion, is hereby disapproved.

7. MANDAMUS--Definition

Mandamus is a special proceeding addressing itself to the equity powers and conscience of the court or judge, for the enforcement of a clear legal right, for which the law provides no adequate remedy.

8. SAME--Mandamus would lie to compel district judge to proceed with taking of deposition of party where judge had abused discretion in refusing to require party to testify by deposition.

When a district judge assumes the duty to take depositions as authorized by 12 O. S. 1941 § 435, he is in the same position and is bound by the same rules as any other officer authorized to take depositions, and it is an abuse of discretion for him to refuse to require a party, whose deposition is sought to be taken, to testify on the ground that the party whose deposition is sought is a resident of the county, is in good health, does not intend to leave the county or state and intends to attend the trial, or for the reason that the party taking the deposition is on a "fishing expedition" and does not agree to use the deposition at the trial or to be bound by it, and mandamus will lie to compel the judge to proceed with the taking of the deposition, where there is no other objection by the judge such as the press of other official business.

Application to assume original jurisdiction and for writ of mandamus by the State ex rel. Sophia G. Westerheide et al. against Marvin Shilling, Judge of the District Court of Carter County. Writ granted.

Champion & Champion, R. Rhys Evans, and Geo. N. Otey, all of Ardmore, for plaintiffs in error.

W. W. Potter and Dolman, Dyer & Dolman, all of Ardmore, for defendant in error.

HURST, J.

¶1 This is an original proceeding in this court for a writ of mandamus. It involves two questions: (1) The right of a party to a pending civil action to take the deposition of the opposite party, and (2) the right of relators to a writ of mandamus against the respondent district judge, who had consented to preside over the taking of the depositions, but had refused to compel the defendant to give his deposition.

¶2 Sophia G. Westerheide et al. sued Paul S. Frame et al. in the district court of Carter county. After summons was served on Frame, plaintiffs duly served notice to take depositions before the respondent as district judge. Respondent as district judge of Carter county assumed jurisdiction to act as an officer in taking the depositions and issued a subpoena for Frame to appear as a witness at the time and place specified in the notice. Frame appeared pursuant to the notice and subpoena and objected to giving his deposition because (1) it was not being taken in good faith, (2) the plaintiffs did not intend to use it at the trial, (3) they did not intend to be bound by Frame's testimony, (4) Frame is a resident of Carter county, is in good health, has no intention of leaving the county or state, and is a necessary witness and his defense cannot be maintained without his testimony, and (5) plaintiffs are merely seeking to ferret out in advance the evidence that the defendants may introduce at the trial. In response to such objections, relators denied they were not acting in good faith, and asserted that the statute gives them the right to take the deposition, that they do not have to agree to be bound by or use the deposition at the trial, and that Frame's testimony might save time and expense in taking other depositions and aid in preparing for trial. Respondent sustained the objections and refused to require Frame to give his deposition, stating that "there is no right to take a deposition unless there is a right to use it," and referred to the attempt to take Frame's deposition as a "fishing expedition."

1. The arguments here as to the right to take the deposition are in line with the contentions made before respondent, above outlined. Relators rely on the terms of the statutes and some of our prior decisions, while respondent relies on some of our prior decisions and Kansas decisions rendered prior to the adoption of our Code from Kansas as well as on subsequent Kansas decisions. Because of the importance of the question and the unsatisfactory state of the decisions on the question, we assumed original jurisdiction.

¶3 12 O. S. 1941, § 434, provides:

"Either party may commence taking testimony by deposition at any time after service of summons upon the defendant."

¶4 12 O. S. 1941, § 383, provides:

"Any party to a civil action or proceeding may compel any adverse party or person, for whose benefit such action or proceeding is instituted, prosecuted or defended, at the trial, or by deposition, to testify as a witness in the same manner, and subject to the same rules, as other witnesses."

¶5 The parties refer us to no other statutory provisions referring to the right to take the deposition of an adverse party, and we know of none other than 12 O. S. 1941, § 390, which provides that a witness may not be compelled to give his deposition out of the county of his residence or where he may be served with subpoena. They do refer us to 12 O. S. 1941, §§433, 447, that have to do only with the right to use the deposition of a witness at the trial. It is the view of the respondent that the right to take the deposition of a witness is dependent upon the right to use it at the trial, and upon the good faith intention of the party taking it to use it at the trial and to be bound by it. We do not agree.

¶6 At the time of the adoption of our Code from Kansas in 1893, the Kansas court had not uniformly construed and applied the statutes. In the case of In re Abeles (1874) 12 Kan. 451, in an opinion by Justice Brewer, it was said that the giving of testimony by deposition "is not a privilege of the witness but a right of the party," and it was further said:

"It is also said that this permits one to go on a 'fishing expedition' to ascertain his adversary's testimony. This is an equal right of both parties, and justice will not be apt to suffer if each party knows fully beforehand his adversary's testimony."

¶7 In the case of In re Davis (1888) 38 Kan. 408, 16 P. 790, without referring to the Abeles Case, it was held that the defendant seeking to take the deposition of Davis, plaintiff in the action, was guilty of oppression and abuse of process, and Davis, who had refused to give his deposition a second time and was imprisoned for such refusal, was released on a writ of habeas corpus. Some language, not necessary for the decision, is used that is contrary to the Abeles opinion. The justice of the result reached cannot be doubted, as Davis had already given his deposition, and the defendant was seeking to flagrantly oppress him and abuse the right to take his deposition by requiring him to give his deposition twice more at widely separated places. In the case of In re Cubberly (1888) 39 Kan. 291, 18 P. 173, the Davis Case was followed, and the Abeles Case was not mentioned. In the case of In re Merkle (1888) 40 Kan. 27, 19 P. 401, the court cites with approval, but seeks to distinguish, the Abeles and Davis Cases, follows the Abeles Case, but uses some language that seems contrary to it. The opinions in the Davis and Cubberly Cases do not refer to the statutes, while those in the Abeles and Merkle Cases do. In view of the conflict between said decisions, it cannot be said that our Territorial ...