Opinion
Rehearing Denied May 9, 1930
Hearing Granted by Supreme Court June 12, 1930
Original proceeding in mandamus by Rodolfo Christ against the Superior Court in and for the City and County of San Francisco and the Hon. James G. Conlan, as Presiding Judge thereof, to require the issuance of a commission for taking of testimony of two witnesses on letters rogatory issued out of a court of record of Guatemala.
Writ granted.
See, also, 280 P. 136. COUNSEL
George Olshausen, of Berkeley, and John B. Ehlen, of San Francisco, for petitioner.
Orrick, Palmer & Dahlquist, Garret W. McEnerney, and Andrew F. Burke, all of San Francisco, for respondents.
OPINION
NOURSE, P.J.
This is an original proceeding in mandamus to require the superior court to issue a commission for the taking of testimony of two witnesses upon letters rogatory issued out of a court of record of Guatemala.
The letters rogatory were presented to respondent court showing that the petitioner represented to the Guatemala court that he was about to commence an action against Adolfo Stahl and the American Finance & Commerce Company, for which it was necessary that the depositions of J. Beaumont and Frank L. Jackson, residing in the city and county of San Francisco, be taken. In the proceeding before the Guatemalan court the general nature of the questions to be asked these witnesses was stated, accompanied by a showing of the materiality of their testimony. This showing having been made to the respondent court, an order that the deposition of Frank L. Jackson be taken was made and a subpoena was issued pursuant to said order. Thereafter a motion was made on behalf of said witness to quash said subpoena upon the grounds that respondent court had no jurisdiction to make the order. This motion was granted, and respondent has since refused to take any other steps to compel attendance of said witness for the taking of his deposition in response to the letters issued by the Guatemalan court.
Preliminarily respondents argue that this is not a proper case for mandamus because the petitioner has another remedy by appeal from the order to quash the subpoena. The remedy by appeal, conceding that there is such, is not always an answer to a petition for mandamus. This writ must be issued when "there is not a plain, speedy, and adequate remedy, in the ordinary course of law" (section 1086, Code Civ.Proc.); that the right of appeal is not always a speedy or adequate remedy is well settled. San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 39, 99 P. 359, 17 Ann.Cas. 933.
It is also argued that the petition is insufficient because it fails to allege a specific demand upon the respondent court to issue a new subpoena. Such a demand is excused when it appears that demand, if made, would have been futile. Here the petition alleges that the respondent refuses to take any steps whatever to compel the witness to attend the taking of his deposition and the answer admits this to be true. It thus appears that a formal demand for the relief prayed for would have been futile because the respondent court conceived that it was without jurisdiction to grant this relief. Such a demand was, therefore, unnecessary. 16 Cal.Jur., pp. 771, 772. Further objection is made by way of argument that the writ should not issue because subsequent to the issuance of the alternative writ herein the respondent James G. Conlan vacated the position of presiding judge of the superior court in and for the city and county of San Francisco, and that another judge of that court has been chosen and is now acting as presiding judge thereof. The point is without merit, because this proceeding is directed to the superior court and not to any individual member or to any particular department thereof.
Upon the merits of the case it is argued that the superior court is without jurisdiction to recognize the letters rogatory or to issue a subpoena for the taking of the deposition because it appears on the face of the petition that there is no action pending in the Guatemalan court. The authority to issue the commission upon letters issued out of a foreign jurisdiction is found in section 2036a, Code of Civil Procedure. That section provides that witnesses may be compelled to appear and testify in the same manner and by the same process as may be employed for taking testimony for proceedings pending in this state. Section 2021 of the same Code provides that the testimony of a witness in this state may be taken by deposition in an action any time after the service of summons and in a special proceeding after a question of fact has arisen therein. If this were the only provision for the taking of a deposition of a witness in proceedings pending in this state, the argument of respondent would be sound, but sections 2083 et seq. of the same Code provide a complete method for the taking and perpetuation of the testimony of a witness when no other action is pending. Section 2084 permits the superior court to issue a commission for that purpose upon a petition showing "that the applicant expects to be a party to an action in a court in this state, and, in such case, the names of the persons whom he expects will be adverse parties; or *** and, The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved."
Respondent relies upon section 2035, Code of Civil Procedure, which provides that "any party to an action or special proceeding in a court or before a judge of a sister state, may obtain the testimony of a witness residing in this state, to be used in such action or proceeding." It is argued that section 2036a must be read in connection with 2035 so that a commission shall not issue upon letters coming from a foreign jurisdiction to a better advantage than upon letters coming from a sister state of the United States, and that under the provisions of section 2035 such a commission cannot issue in any case, except where an action or special proceeding is pending in the sister state. If it were conceded that such should be the proper interpretation of section 2036a, this would not aid the respondent. Under the provisions of section 2035, relating to depositions upon letters coming from a sister state, and under section 2021, relating to proceedings pending in this state, the commission to take a deposition of a witness is authorized whenever an action or a special proceeding is pending. It is true that under section 2021 a commission may not issue in a special proceeding until after a question of fact has arisen, but the term "special proceeding" as used in that section must be interpreted as including all special proceedings other than those to perpetuate testimony which are specially covered by sections 2083 et seq. of the same Code. Thus, when proceedings to perpetuate testimony are instituted under the provisions of the later sections, the deposition is to be issued in the manner therein prescribed, but there is no reason for holding that the term "special proceeding" as used in section 2035 in reference to matters pending in a sister state does not apply to both characters of special proceedings— those referred to in section 2021 and those referred to in sections 2083 et seq. of the Code.
Therefore, if we are to read section 2036a with section 2035, the construction of the latter section must be that a commission to take testimony may issue upon letters from a foreign jurisdiction showing the pendency of either an action or special proceeding as the latter term is used in our Code.
On the record before us we must presume, in the absence of a contrary showing, that the law of Guatemala is the same as that of California. Wickersham v. Johnston, 104 Cal. 407, 38 P. 89, 43 Am.St.Rep. 118; 5 Cal.Jur. 431. We must, therefore, presume that the proceedings instituted in Guatemala are like the proceedings authorized by sections 2083 et seq. of the Code of Civil Procedure, and that it is pending until such testimony is completed and the deposition duly filed with the court out of which the commission issued.
We do not deem it necessary to discuss the authorities cited from federal and other jurisdictions, for they are all based upon statutes in nowise similar to the Code sections above noted. The question presented here is simply one of interpretation of these Code sections in which we are not aided by the citation of any California authorities. We are satisfied from our examination of the Code that the respondent court has full jurisdiction to make the order prayed for, and, such being the case, this writ should issue under the authority of San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 39, 99 P. 359, 17 Ann.Cas. 933.
Let a peremptory writ issue as prayed.
We concur: STURTEVANT, J.; BURROUGHS, Justice pro tem.