how served. 1987. (§ 404.) The service of a subpoena is made Subpoena, by showing the original and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person. witness be 1988. (§ 405.) If a witness is concealed in a How, if building or vessel, so as to prevent the service of a concealed. subpoena upon him, any Court or Judge, or any officer issuing the subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the Sheriff of the county serve the subpoena; and the Sheriff must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed. 1989. (§ 402.) A witness is not obliged to attend as a witness before any Court, Judge, Justice, or any other officer, out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial. NOTE.-See Sec. 1985, ante. When a compelled witness is to attend. present to testify. 1990. ($ 406.) A person present in Court, or Person before a judicial officer, may be required to testify in compelled the same manner as if he were in attendance upon a subpoena issued by such Court or officer. dience, how 1991. (§ 409.) Disobedience to a subpoena, or a Disobe refusal to be sworn, or to answer as a witness, or to punished. subscribe an affidavit or deposition when required, may be punished as a contempt by the Court or offi cer issuing the subpoena or requiring the witness to be Forfeiture therefor. Warrant may issue to bring witness, when. Contents of warrant. If witness be a prisoner, how brought. sworn; and if the witness be a party, his complaint or answer may be stricken out. NOTE.-35 Cal., p. 96. 1992. (§ 410.) A witness disobeying a subpœna also forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. 1993. (§ 411.) In case of failure of a witness to attend, the Court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the Sheriff of the county to arrest the witness and bring him before the Court or officer where his attendance was required. 1994. Every warrant of commitment, issued by a Court or officer pursuant to this Chapter, must specify therein, particularly, the cause of the commitment, and if it be for refusing to answer a question, such question must be stated in the warrant. And every warrant to arrest or commit a witness, pursuant to this Chapter, must be directed to the Sheriff of the county where the witness may be, and must be executed by him in the same manner as process issued by the District Court. 1995. (§ 412.) If the witness be a prisoner, confined in a jail or prison within this State, an order for his examination in the prison upon deposition, or for his temporary removal and production before a Court or officer for the purpose of being orally examined, may be made as follows: 1. By the Court itself in which the action or special proceeding is pending, unless it be a Justice's Court; 2. By a Justice of the Supreme Court, Judge of the District Court, or County Judge of the county where the action or proceeding is pending, if pending before a Justice's Court or before a Judge or other person out of Court. motion. 1996. (§ 413.) Such order can only be made on On whoso the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. examined. 1997. (§ 414.) If the witness be imprisoned in How the county where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon deposition. CHAPTER III. MANNER OF PRODUCTION. ARTICLE I. MODE OF TAKING THE TESTIMONY OF WITNESSES. II. AFFIDAVITS. III. DEPOSITIONS. IV. MANNER OF TAKING DEPOSITIONS OUT OF THE STATE. V. MANNER OF TAKING DEPOSITIONS IN THE STATE. VI. GENERAL RULES OF EXAMINATION. ARTICLE I. MODE OF TAKING THE TESTIMONY OF WITNESSES. SECTION 2002. Testimony, in what mode taken. 2003. Affidavit defined. 2004. A deposition defined. 2005. Oral examination defined. 2006. Deposition, how taken. 2002. The testimony of witnesses is taken in Testimony, three modes: 1. By affidavit; 2. By deposition; 3. By oral examination. in what mode taken Affidavit delined. A deposi tion defined Oral examination defined. Deposition how taken. 2003. An affidavit is a written declaration under oath, made without notice to the adverse party. 2004. A deposition is a written declaration under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine. 2005. An oral examination is an examination in presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness. 2006. Depositions must be taken in the form of question and answer, and the words of the witness must be written down, unless the parties agree to a different mode. Affidavits and depositaken. ARTICLE II. AFFIDAVITS. SECTION 2009. Affidavits and depositions, how taken. 2010. Evidence of publication, what. 2011. Where filed. 2012. Affidavits to be used in this State, before whom may be taken in this State. 2013. If made in another State of the United States, before whom taken. 2014. If made in a foreign country, before whom taken. 2015. Certificate of the Clerk, if taken before a Judge of a Court out of this State. the 2009. An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by some other provision of this Code. 2010. Evidence of the publication of a document or notice required by law, or by an order of a Court publica or Judge, to be published in a newspaper, may be Evidence of NOTE.-Quivey vs. Porter, 37 Cal., p. 459; Hahn vs. filed. 2011. If such affidavit be made in an action or Where special proceeding pending in a Court, it may be filed with the Court or a Clerk thereof. If not so made, it may be filed with the Clerk of the county where the newspaper is printed. In either case the original affidavit, or a copy thereof, certified by the Court or Clerk having it in custody, is primary evidence of the facts stated therein. to be used State, 2012. (§ 424.) An affidavit to be used before any Affidavits Court, Judge, or officer of this State, may be taken before any Judge or Clerk of any Court, or any Justice of the Peace or Notary Public in this State. NOTE.-An affidavit need not be signed by the party making it. An affidavit in which the official character of a Justice of the Peace before whom it is taken does not appear, is nevertheless good.-Ede vs. Johnson, 15 Cal., p. 53. in this before whom may be taken in this State. If made in another State of the United before 2013. (§ 425.) An affidavit taken in another State of the United States, to be used in this State, must be taken before a Commissioner appointed by the Gov- Stats, ernor of this State to take affidavits and depositions in taken. such other State, or before any Judge of a Court of record having a seal. whom a foreign before 2014. (§ 426.) An affidavit taken in a foreign If made in country, to be used in this State, must be taken before country, an Embassador, Minister, Consul, or Vice Consul of whom the United States, or before any Judge of a Court of record having a seal, in such foreign country. taken. |