Opinion
No. 2 CA-CIV 275.
July 12, 1966.
Original proceeding for writ of prohibition to prohibit taking of depositions by defendant in paternity action. The Court of Appeals, Molloy, J., held that paternity proceedings are civil in nature and subject to civil procedures including procedures pertaining to discovery by deposition; they are not quasi criminal proceedings to which procedures for discovery by deposition do not apply.
Writ denied.
William J. Schafer, III, County Atty., Pima County; Norman E. Green, former County Atty., by Arthur L. Meaker, Deputy County Atty., Tucson, for petitioner.
Geyler Bird, by Theodore A. Geyler, Tucson, for respondent James R. Madden.
Petitioner seeks a writ in this court to prohibit the taking of depositions by the defendant in a paternity action.
Action was commenced by the filing of a complaint by the complaining witness in July, 1965. Following a hearing in justice court, trial was set for June 14, 1966. Subpoenae duces tecum were filed by the defendant's counsel on May 27, 1966 and served on the witnesses to be deposed. Time for taking the depositions was set for the following day, May 28, 1966. The petitioner, as deputy county attorney, was granted a hearing on May 28, 1966 on an order to show cause why the time for the deposition-taking should not be enlarged. The superior court ruled adversely to the petitioner who then sought prohibitory relief from this court, on the theory, raised in the superior court, that (1) paternity is a quasi-criminal proceeding to which procedures for discovery by deposition do not apply, and (2) that the time set for the depositions was unreasonably short and did not provide adequate notice for preparation.
This court has recently had occasion to reiterate the well-rooted proposition that in this jurisdiction paternity proceedings are civil in nature and are subject to civil procedures. State ex rel. Green v. Superior Court (Vega), 3 Ariz. App. 473, 415 P.2d 487, filed June 14, 1966. See also Skaggs v. State, 24 Ariz. 191, 207 P. 877 (1922); State of Arizona v. Nerini, 61 Ariz. 503, 151 P.2d 983 (1944); State v. Hicks, 69 Ariz. 208, 211 P.2d 473 (1949); McGuire v. State, 84 Ariz. 242, 326 P.2d 362 (1958); State v. Mejia, 97 Ariz. 215, 399 P.2d 116 (1965).
The Rules of Civil Procedure, 16 A.R.S. specifically provide for discovery by deposition, and accordingly petitioner's first contention is without merit. 10 Am.Jur.2d Bastards § 104, pp. 920-921; 10 C.J.S. Bastards § 82, pp. 170-171.
Petitioner's second contention is similarly untenable. Rule 30(a), Rules of Civil Procedure, requires that "reasonable notice" be given "to every other party" of the taking of a deposition. Reasonableness is a quality determined by circumstances, and the circumstances considered by the court below and found by that court to justify deposition-taking on short notice, are not before us. Rule 45(b), Rules of Civil Procedure, allows that the court, on prompt motion "* * * may quash or modify the subpoena if it is unreasonable and oppressive. * * *" (Emphasis added.) Again, the circumstances prompting the superior court, in its discretion, to refuse to quash the subpoena, are not on record in this court. Twenty-four hours notice is not necessarily unreasonable. 2A Barron Holtzoff, Federal Practice and Procedure § 713, pp. 208-209.
In any event, the time set for deposition-taking is past. If respondent desires to pursue this discovery, a time will have to be set and fresh notice given.
Writ denied.
KRUCKER, C.J., and HATHAWAY, J., concur.