Frederick Mortensen Hinch Edward Mills John.

American notary and commissioner of deeds manual: the general and statutory ... online

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those sent by the justice.

I 368. District of Oolnmbia— DEPOSITIONS— may be taken when
witness lives beyond this district; when witness is going out of the
district or United States and will not return in time for trial; when
aged or infirm or cannot attend the trial, may be taken before any
court of the United States, commissioner or clerk of a court, chancellor,
justice, judge of supreme or superior court, mayor or chief magistrate,
judge of county court or court of common pleas, notary, justice of the
peace within the United States, when not interested in the cause.
Reasonable notice of time and place must be given opposite party, with
names of witnesses and oflicer taking. Unlawful to require opposite
party to attend more than one place on the same day, officer taking to
summon by the marshal any witness. Officer has power to compel
attendance. Witness to be first sworn to tell the truth, the whole
truth and nothing but the truth. Adverse party has right to cross-



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§ 360] DEPOSITIONS. 213

ezamint, th« qutstions and answers to be taken down in writing, or
typewritten if desired, read to and signed hj witness in the presence of
the officer. If refusal is made, officer to so certify, with the reasons.
Documents to be sealed up by officer and indorsed with the title of the
cause, costs of taking, by whom paid and by him mailed to the court
where cause is pending. On motion, court may order a commission to
take a deposition outside the district.

i 359. Florida — ne party desiring the deposition must prepare
written interrogatories, deliver a copy to the adverse party or his
attorney a reasonable time before applying for a commission, stating
reasons for taking, date of application, name of commissioner, and file
same with the court. If the adverse party has no attorney and does
not reside in the state, notice to be given by advertisement in a news-
paper printed in applicant's county once a week for four consecutive
weeks. On proof of the advertisement to the clerk or the court a com-
mission will issue. The adverse party may file cross-interrogatories and
name of commissioner, serving a duplicate on the applicant. The
applicant can serve notice of redirect interrogatories, with notice of
time of application for a commission upon all the interrogatories. At
the time mentioned the clerk or court shall issue commission, and names
of the commissioners selected by each of the parties, attaching the inter-
rogatories filed by each and delivering same to the applicant. The
commissioner shall make oath before a. notary or judicial officer where
the testimony is taken, that he is neither kin, attorney nor agent of
either party, nor interested in the result; that he will well and faith-
fully perform the duties of commissioner. Oath to be in writing, and
returned with the commission. The commissioner shall swear each
witness before taking the deposition. The parties or their attorneys
may be present, and after the interrogatories may propound others
germane to the subject, which shall be written down by the commis-
sioner and become a part of the deposition. The commissioners shall
inclose all the interrogatories, answers and commission, seal and write
their names across the seals of the envelope, that the court may recog-
nize it as applicable to some particular cause. The usual initials of
office and Christian names of the commissioners and others shall be
sufficient. It may be returned by mail or person. The person returning
it or taking it from the post office, other than the clerk, must make oath
that he received it from the commissioner (or the postmaster, etc.);
that it has been in his possession ever since, and has not been opened
or altered.

I 360. Ckorgia — ^A witness may be examined on interrogatories, by
commission, at the instance of either party, in any civil cause pending
in this state when the witness resides out of the county; when age,
condition of health or business prevents attending at court, or when
about to remove from the county or leave home beyond the term of
court, or where he is the only material witness. Female witnesses are
not obliged to attend court. The party desiring it must prepare written



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314 N0TABIB8 PCBLIO. [§ 360

interrogatories, with witness' name and residence, and serve a copj,
with notice of filing, on the adverse party or his attorney. At the ex-
piration of ten days a commission shall issue. If the adverse party is
beyond the jurisdiction of the court, or cannot be found, and has no
attorney, a ten days' notice at the court house door will suffice. Notice
must be served on each adverse party. Tlie commission will issue a
blank allowing the party to select his commissioners, but the adverse
party shall be allowed to select two. The commissioner shall be dis-
interested, having no relationship or interest to the parties. His com-
pensation not exceeding $2.00 per day, as cost in the suit. Neither
party nor representative to be present. On refusal of witness to appear
or answer, an affidavit presented to a judge of the superior court, or
the ordinary, shall cause an order to issue to arrest and bring him
before such judge or ordinary; after hearing his excuses he shall
order the witness lodged in jail until he answers. This provision ex-
tends to commissions sent from the courts of other states in the
United States. No witness shall be required to go out of the county,
nor more than ten miles from his residence; he shall have court wit-
ness fees. Witnesses may write their answers in the presence of the
commissioners. It shall be certified by the commissioners and returned
with the commission. The answers to be made under oath, signed
by the witness and attested by the commissioners, and place of
execution 8}¥>wn. All papers, etc., to be sealed in an envelope, with
the names of the commissioners written across the seal and directed
to the officer of the court. It can be sent by mail or express, by the
party himself or by some private hand. The postmaster or express
company receiving must certify to the fact. The postmaster or ex-
press agent delivering must certify to its reception by due course of
mail or express, or the party delivering it by hand must make affidavit
of the fact and of its freedom from alteration. The postmaster at the
office to which it is directed shall immediately upon its receipt indorse
upon it the fact of its reception by due course of mail, and at once de-
liver it to the clerk or presiding judge or justice. The clerk or judge
receiving shall indorse thereon from whom received and the time; it
shall be filed away unbroken and may be opened any time by written
consent of counsel for both sides. A party failing to return or wil-
fully abstracting the commission shall be attached for contempt and
otherwise dealt with until same is returned. The adverse party or his
attorney may, in writing, waive the commission and the answers of
the witness may be taken in virtue of such agreement. The person
taking shall administer the usual oath to the witness under the penal-
ties of perjury in this state. Exceptions must be in writing and notice
given the opposite party before the case is submitted to the jury; pro-
vided, the same has been in the clerk's office for twenty-four hours.
Depositions read on the first trial shall not be subject to formal excep-
tions in subsequent trials. In any court of record, either party may,
without an order or commission, take the deposition of a witness, resi-
dent of the county or not, on giving adverse party five days' notice of



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§ 361] DEPOSITIONS. 215

time, place, and names of witnesses. To be taken before anj com-
missioner appointed by the judge of the county superior court. The
commissioner to summon witnesses and compel attendance. HIS FEES —
to wit: examining each witness, $2.00; certifying and returning testi-
mony for plainti£f or defendant in each case, 50c; issuing subpoena,
25c. PERPETUATION OF TESTIMONY— superior courts may enter-
tain, where the facts cannot be made immediately the subject of in-
vestigation at law, and the common-law proceedings under the Code
as available or as completely available as a proceeding in equity. Fail-
ure to appoint a commissioner by the judge of the superior court of
any county, or a vacancy occurring in the office of commission, the
clerk of said court shall act as such commissioner, all witnesses to bo
examined in the county of their residence, and before the commissioner
or clerk acting as such. Commissioner has power, notice being given
to the opposite party or his attorney, or a subpoena duces tecum being
served, five days previous to the hearing, to require any witness or
party to produce at the hearing books, writings and other documents
in his possession, power, custody or control. A refusal to appear or
answer without legal excuse shall be treated as contempt. Certification
of tame to the judge of the court where case is pending shall be
punishable by the judge as committed before him.

I 86L Hawaiian Islands—DBPOSITIONS— any court of record, or
its judges, in suits pending before them can order a commission to issue
for the examination of witnesses residing in a foreign country or other
circuit, upon oath, by interrogatories or otherwise, with full instructions
as to taking. When it shall appear to the satisfaction of the court
that the witness is beyond the jurisdiction of the court, a resident
of another circuit, or unable to be present at the trial. Notice
to be given the adverse party, his agent or attorney, allowing twenty -
four hours after notice and one day exclusive of Sundays for every
twenty-five miles of travel, if he lives more than twenty-five miles
from the place of taking the deposition. WHO CAN TAKE — a district
magistrate, circuit judge or clerk, notary. ABBOAD — ministers, com-
missioners, consuls, vice consuls. The witness to be sworn or affirmed
to testify to the truth, the whole truth and nothing but the truth.
The examination to be oral or by written interrogatories; same to be
written by the officer or someone by him appointed, to be taken in
his presence, to be read by, or to, and signed by the deponent. The
officer then to annex his certificate, stating the time, place and manner
of the taking, the cause for which it was taken, who were present,
whether adverse party attended, stating notice, if any given. The
deposition then to be inclosed in an envelope, sealed up, directed to the
court or arbitrators before whom the cause is in trial, and delivered;
and shall remain sealed until opened by direction of the court, arbi-
trators' or referees' objections to be made at the taking and noted on
the deposition if upon written interrogatories. Witness may be sum-
moned and compelled t« attend the examination.



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216 KOTABIES PUBLIC. [§ 362

I a62. Idalio— BEFOBE WHOM TAKEN— an^ judge, justice of the
peace, notary, mayor or recorder of a city, clerk of a court of record
or commissioner appointed by the court, must be a disinterested party.
WITHIN THE UNITED STATES—no commission is necessary. OUT-
SIDE THE UNITED STATES— the clerk shall, upon request of the
party, issue a commission to the officer or commissioner designated.
No order of court or affidavit necessary. If the commission contains the
name of the officer, his attestation, officially certifying the same is suffi-
cient. If his name is not specified and he has no official seal, then his
certificate shall be authenticated by the certificate and official seal of
the clerk or prothonotary of any court of record of his county. Notice
must be given the adverse party, his agent or attorney) stating the cause,
court, time, place, and names of witnesses, allowing one day for each
twenty miles party may have to travel, not exceeding thirty days. If
the party nor his attorney reside in the state, notice may be filed in
the clerk's office and published three weeks successively in the county
where suit is pending and a copy mailed to the party or hia attorney,
aUowing ten days. May be taken by either party in vacation or term
tiilie, after service of summons, without order of court. The court may
fix the time. A witness is not obliged to attend outside his county.
Officer can summon and compel attendance by reporting to any probate
or district court of the county, and on refusal then to comply the court
will deal as for contempt. The deponent shall be sworn by the officer
to testify to the truth, the whole truth and nothing but the truth.
The party producing him to first examine, then the adverse party, and
then the officer or parties afterwards if they see cause. The deposition
to be written down by the officer, or the deponent, or some disinterested
person, in the presence and under the direction of the officer. After
being read to or by the deponent, he shall subscribe to it. Tlie officer
shall annex his certificate and state that the deponent was sworn accord-
ing to law; by whom the deposition was written; that it was written
in the presence and under the direction of the officer; whether the ad-
verse party was present; time and place of taking and the hours between.
The officer shall sign and » attest the certificate, seal with his official
seal, if he have one. The officer shall seal it up and direct it to the
clerk of the court, indorsing on the envelope the names of the parties
and the witnesses deposed. Must be filed in court one day before trial.
Objections must be made before trial. It may be used in a second trial
or in any other action between the parties for the same cause, if it has
remained during the time on file in the court. DEPOSITIONS TAKEN
FOR PERPETUATING TESTIMONY— may, at any time, be published
by order of the court in the office of the clerk where filed and entered
upon record, on the motion of anyone interested, at the cost of the
party.

I 363. IUlnoi»— WHO MAT TAKE — ^the testimony of any witness
residing or being within the state necessary in any suit in chancery
iu this state, may be taken before any judge, justice of the peace,
clerk of a court, master in chancery or notary public, without a com-



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§ 363] DEPOSITIONS. 217

mission or filing interrogations for sneh purpose, on giving the adverse
party or his attorney ten days' notice of the time and place of taking,
and one day in addition (Sundays inclusive) for every fifty miles ' travel
from the place of holding the court to Where such deposition is to be
taken. If the party entitled to notice and his attorney reside in the
county where the deposition is to be taken, five days' notice suHlcicat.
RESIDENT WITNESS— upon satisfactory affidavit being filed, deposi-
tions of witnesses residing in this state, to be read in suits at law,
may be taken in like manner and upon like notice; where the witness
resides in a different county from that in which the court is held,
is about to depart from the state, is in custody on legal process, or
is unable to attend such court on account of advanced age, sickness
or other bodily infirmity. NONEESIDENT WITNESS— any witness
residing within this state more than one hundred miles from the place
of holding the court, or not residing in this state, or who is en-
gaged in the military or naval service of this state or the United
States, and is out of this state, necessary in any civil cause pending
in any court of law or equity in this state, ten days' notice to be
given the adverse party, or his attorney, together with a copy of the
interrogatories to be put to such witness, and to sue out from the proper
clerk's office a dedimus poteatatem or commission, under the seal of
the court. When the deposition of any witness is desired to be taken
and the adverse party is not a resident of the county in which the suit
is pending, or is in default, and no attorney has appeared for him
in such cause, upon filing an affidavit of such fact and stating the
place of residence of such adverse party, if known, or that, upon dili-
gent inquiry, his place of residence cannot be ascertained, notice may
be giyen by sending a copy thereof by mail, postage paid, addressed to
such party at his place of residence, if known, or, if not known, by
posting a copy of such notice at the door of the court house where
the suit is pending, or publishing the same in the nearest newspaper,
and when interrogatories are required, filing a copy thereof with the
clerk of the court ten days before the time of suing out such com-
mission. ORAL EXAMINATION— when a party shall desire to take
the evidence of a nonresident witness, to be used in any cause pending
in this state, the party desiring the same, or where notice shall have
been given that a commission to take the testimony of a nonresident
witness will be applied for, the opposite party, upon giving the other
three days' notice in writing of his election so to do, may have a
commission directed to take such evidence, upon, interrogatories to be
propounded to the witness orally; upon the taking of which, each party
may appear before the commission, in person or by attorney, and
interrogate the witness. The party desiring such testimony shall give
to the other the following notice of the time and place of taking the
same, to wit, ten days, and one day in addition thereto (Sundays
included) for every one hundred miles' travel from the place of hold-
ing the court to the place where such deposition is to be taken. ORAL
EXAMINATION, COSTS— when a party to a suit shall give the op-



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218 KOTARIBS PUBLIC. [§ 363

posite party notice to take a deposition upon oral interrogatories, and
shall fail to take the same accordingly, unless such failure be on ac-
count of the nonattendance of the witness, not occasioned by the fault
of the party giving the notice, or some other unavoidable cause, the
party notified, if he shall attend himself or by attorney, agreeably to
the notice, shall be entitled to $2.00 per day for each day he may
attend under such notice, and to 6c per mile for every mile that he
shall necessarily travel in going to and returning from the place desig-
nated to take the deposition, to be allowed by the court where the suit
is pending, and for which execution may issue. HOW TAKEN AND
CEBTIFIED — previous to the examination of any witness he or she
shall be sworn (or affirmed) by the person or persons authorized to take
the same, to testify the truth in relation to the matter in controversy,
so far as he or she may be interrogated; whereupon the officer authorized
to take depositions shall proceed to examine such witness upon all such
interrogatories as may be inclosed with or attached to any such com-
mission as aforesaid and which are directed to be put to such witness,
or where the testimony is taken upon oral interrogatories, upon all such
interrogatories as may be directed to be put by either party litigant;
and shall cause such interrogatories, together with the answers of the
witness thereto, to be reduced to writing in the order in which they
shall be proposed and answered, and signed by such witness; after
which, it shall be the duty of the person taking the deposition to annex
at the foot thereof a certificate, subscribed by himself, stating that
it was sworn to and signed by the deponent, the time and place, when
and where taken. Every such deposition, taken and subscribed, and all
exhibits produced, or which shall be proved or referred to by any
witness, together with the commission and interrogatories, if any, shall
be inclosed, sealed up, and directed to the clerk of the court in which
the action shall bo pending, with the names of the parties litigant
indorsed thereon; provided, that when any deposition shall be taken as
aforesaid, by any judge, master in chancery, notary public, or justice
of the peace out of this state, or other officer, such return shall be
accompanied by a certificate of his official character, under the great
seal of the state, or under the seal of the proper court of record of the
county or city wherein such deposition shall be taken. Every deposition
that shall be returned to the court unsealed, or the seal of which shall
be broken previous to its reception by the clerk to whom it is directed,
shall, if objection be made thereto in proper time, be regarded by the
court as informal and insufficient. It shall not be lawful for any party
litigant or the clerk of the court into which any deposition may be
returned, as aforesaid, to break tho seal of the same, either in term
time or in vacation, unless by written conpont of the parties thereto
or their attorneys, or by the order of the court, duly entered of record.
And if any such person or clerk Fhall presume to open any such deposi-
tion when taken, and returned as aforesaid, without such consent or
order of the court, he shall be considered guilty of a contempt of court,
and may be punished accordingly; provided, that it shall not be consid-



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S 863] DEPOSITIONS. 819

ered an offense for the clerk to break open anj snch deposition, when
it is doubtful from the indorsements made thereon whether the same be
a deposition or not; but in such ease, it shall not be proper for such
clerk to permit any person to examine anj deposition which may be
thus opened by mistake, until the consent of the parties or their attor-
neys is first had and obtained therefor, or until the court shall have
entered the order therefor. WEITINQ — the party, his attorney, or any
person who shall in any wise be interested in the event of the suit, shall
not be permitted to dictate, write or draw up any deposition which may
at any time be taken under this act, or be present during the taking of
any deposition by written interrogatories; and every deposition so
dictated, written or drawn up, or during the taking of which any such
party, his attorney, or any person so interested is present when the
same is taken upon written interrogatories as aforesaid, shall be re-
jected by the court as informal and insufficient. EVIDENCE — every
examination and deposition which shaU be taken, and returned according
to the provisions of this act, may be read as good and competent evidence
in the cause in which it shall be taken, as if such witness had been
present and examined by parol in open court, on the hearing or trial
thereof. FURTHER EXAMINATION—if it shall appear to the satis-
faction of the court that any witness has not given full or proper an-
swers to the interrogatories or cross-interrogatories accompanying the
commission to take his testimony, or that a further examination ought
to be allowed to either party for the ends of justice, may allow another
commission to issue to the same or other commissioner, to further ex-
amine the witness in such manner and upon such conditions and notice
as the court shall direct. ATTENDANCE OF WITNESSES— every offi-
cer required to take depositions in this state, or by virtue of any com-
mission issued out of ,any court of record in any other state, territory
or country, shall have power and authority to issue subpoenas, if neces-
sary, to compel the attendance of all witnesses, in the same manner as
witnesses are subpcenaed in other cases, and any witness neglecting or
refusing to obey such subpoena, or refusing to testify, or to subscribe
his deposition when correctly taken, the officer issuing such subpoena
shall at once report in writing the facts accompanying the same with a
copy of the commission or other authority received by him, together
with a copy of the subpoena and the return of service thereof, and file
the same in the office of the clerk of the circuit court of such county,
and thereupon attachment shall issue out of said court against such
witness, returnable forthwith, before the circuit court of such county
if in term time, or before any judge of said court if in vacation, who
shall hear and determine the matter in a summary way; and it ap-
pearing to the court to be wilful, and without lawful excuse, the court
shall punish such witness by fine, and imprisonment in the county jail
as the nature of the case may require in cases of contempt of court.
FEES OF WITNESSES — every person attending to be examined shall
be entitled to compensation at the same rate as is allowed to witnesses
attending courts of record in this state; and the party requiring such



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220 NOTARIES PUBLIC. [§ 363

•xaminatioii shall pay the expense thereof, bat may, if siieeeasfnl in



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 26 of 50)