Certificate of the Clerk, if taken before a 2015. (§ 427.) When an affidavit is taken before a Judge or a Court in another State, or in a foreign Judge of a country, the genuineness of the signature of the Judge, the existence of the Court, and the fact that such Judge is a member thereof, must be certified by the Clerk of the Court, under the seal thereof. Court out of this State. ARTICLE III. Dopositions, when used. Testimony In the State, when taken. DEPOSITIONS. SECTION 2019. Depositions, when used. 2020. Testimony of a witness out of the State, when taken. 2021. In the State, when taken. 2019. In all cases other than those mentioned in Section 2009, where a written declaration under oath. is used, it must be a deposition as prescribed by this Code. 2020. ($432.) The testimony of a witness out of the State may be taken by deposition, in an action, at any time after the service of the summons or the appearance of the defendant; and, in a special proceeding, at any time after a question of fact has arisen therein. 2021. (§ 428.) The testimony of a witness in this State may be taken by deposition, in an action, at any time after the service of the summons or the appearance of the defendant; and, in a special proceeding, after a question of fact has arisen therein, in the following cases: 1. When the witness is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended; 2. When the witness resides out of the county which his testimony is to be used; in 3. When the witness is about to leave the county where the action is to be tried, and will probably con- Samo. tinue absent when the testimony is required; 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend; 5. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required. NOTE.-See, generally, McCann vs. Beach, 2 Cal., p. 25; Dye vs. Bailey, 2 Cal., p. 383; Skidmore vs. Taylor, 29 Cal., p. 619. ARTICLE IV. MANNER OF TAKING DEPOSITIONS OUT OF THE STATE. SECTION 2024. Testimony of witness out of State taken upon commisson issued under seal, upon notice. To whom to issue. 2025. Proper interrogatories may be prepared, or may be 2026. Authorities and duties of Commissioner. 2027. Trial, when postponed for reason of non-return of com mission. 2028. Deposition, by whom used. 2024. (§ 433.) The deposition of a witness out of Testimony of witness out of Stato this State may be taken upon commission, issued from the Court, under the seal of the Court, upon an order commission taken upon issued under seal, upon notice. to issue. of the Judge or Court, or County Judge, on the application of either party, upon five days previous notice to the other. It must be issued to a person agreed To whom upon by the parties, or, if they do not agree, to any Judge or Justice of the Peace, or Commissioner, selected by the officer issuing it. interroga may be 2025. (§ 434.) Such proper interrogatories, direct Proper and cross, as the respective parties may prepare to be settled, if the parties disagree as to their form, by the Judge or officer granting the order for the commis 57-VOL. II. tories prepared, waived by or may be the parties. Authorities and duties sioner. sion, at a day fixed in the order, may be annexed to the Commission; or, when the parties agree to that mode, the examination may be without written interrogatories. 2026. (§ 435.) The Commission must authorize of Commis- the Commissioner to administer an oath to the witness, and to take his deposition in answer to the interrogatories, or, when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the Court, in a sealed envelop, directed to the Clerk or other person designated or agreed upon, and forwarded to him by mail or other usual channel of conveyance. Trial, when postponed for reason of nonreturn of commission Deposition, by whom used. 2027. (§ 436.) A trial or other proceeding must not be postponed by reason of a commission not returned, except upon evidence, satisfactory to the Court, that the testimony of the witness is necessary, and that proper diligence has been used to obtain it. NOTE.-Pierson vs. Holbrook, 2 Cal., p. 598. 2028. The deposition mentioned in this Article may be used by either party on the trial or other proceeding, against any other party giving or receiving the notice, subject to all just exceptions. ARTICLE V. MANNER OF TAKING DEPOSITIONS IN THIS STATE. SECTION 2031. Depositions may be taken before a Judge, etc., upon notice to the adverse party. 2032. Manner of taking depositions. May be used by either party on the trial. 2033. When deposition excluded. 2034. A deposition once taken may be read at any time. 2035. Deposition in this State to be used in other States. 2036. How to procure witness upon commission. 2037. How, if no commission. 2038. Deposition, how taken. taken may be before a Judge, etc., upon notice to the party. 2031. (§ 429.) Either party may have the deposi- Depositions tion taken of a witness in this State, in either of the cases mentioned in Section 2021, before a Judge or officer authorized to administer oaths, on serving upon adverse the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is within that section. Such notice must be at least five days, adding also one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless, for a cause shown, a Judge, by order, prescribe a shorter time. When a shorter time is prescribed, a copy of the order must be served with the notice. NOTE.-See, generally, Dye vs. Bailey, 2 Cal., p. 5 of taking 2032. (§ 430.) Either party may attend the ex- Manner amination and put such questions, direct and cross, as depositions may be proper. The deposition, when completed, must be carefully read to the witness and corrected by him in any particular, if desired; it must then be subscribed by the witness, certified by the Judge or officer taking the deposition, inclosed in an envelop or wrapper, sealed, and directed to the Clerk of the Court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the Judge or officer to the Clerk or such person, or transmitted through the mail or by some safe private opportunity; and thereupon such deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions; but if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. May be either used by party on the trial. When deposition excluded. A deposi tion once be read at any time. If the deposition be taken under Subdivisions 2, 3, and 4, of Section 2021, proof must be made at the trial that the witness continues absent or infirm, or is dead. The deposition thus taken may be also read in case of the death of the witness. NOTE.-Dye vs. Bailey, 2 Cal., p. 383; Mills vs. Dunlap, 3 Cal., p. 94; Spring vs. Hill & Carr, 6 Cal., p. 17; Williams vs. Chadbourne, 6 Cal., p. 559; Jones vs. Love, 9 Cal., p. 68; Myers vs. Casey, 14 Cal., p. 542; Higgins vs. Wortell, 18 Cal., p. 330; Lawrence vs. Fulton, 19 Cal., p. 682; Brooks vs. Crosby, 22 Cal., p. 42; Elgin vs. Hill, 27 Cal., p. 373. 2033. Notwithstanding the taking of a deposition, it may be excluded from the case upon proof that sufficient notice was not given to the party against whom it is offered to enable him to attend the taking thereof, or that the taking was not in all respects fair. 2034. (§ 431.) When a deposition has been once taken may taken, it may be read by either party in any stage of the same action or proceeding, or in any other action between the same parties, upon the same subject, and is then deemed the evidence of the party reading it. NOTE.-Turner vs. Mellhaney, 8 Cal., p. 575; Myers vs. Casey, 14 Cal., P. 542. Deposition in this 2035. Any party to an action or special proceed State to be ing in a Court or before a Judge of a sister State, used in other States. How to procure witness upon commission. may obtain the testimony of a witness residing in this State, to be used in such action or proceeding, in the cases mentioned in the next two sections. 2036. If a commission to take such testimony has been issued from the Court or Judge before whom such action or proceeding is pending, on producing the commission to a District or a County Judge, with an affidavit satisfactory to him of the materiality of the testimony, he may issue a subpoena to the witness, requiring him to appear and testify before the Com ་ |