Frederick Mortensen Hinch Edward Mills John.

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

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the suit, be allowed for the same in the taxation of costs. On the trial
of every suit in chancery, oral testimony shall be taken when desired
by either party. TESTIMONY PERPETUATED—where any person
shall desire to perpetuate the remonbrance of any fact, matter or
thing, necessary to the security of any estate, real, personal or mixed,
or any private right, such person, upon filing a petition supported by
affidavit in the circuit court of the proper county, setting forth, briefly
and substantially, his interest, claim or title concerning which he desires
to perpetuate evidence, the names of all other persons interested or
supposed to be intereetod therein, and whether there are any persons
interested therein whose names are unknown to the petitioner, and the
name of the witness proposed to be examined, may sue out from such
court a dedimus potestatem or commission, authorizing the deposition
of such witness. Such petition shall be docketed by the clerk as other
eases in equity, the petitioner being designated as plaintiff, and the
persons stated to be interested, as aforesaid, as defendants — the parties
whose names are unknown being designated as "unknown owners."
SEVERAL COMMISSIONS MAY ISSUE— several commissions may be
issued, upon the same petition, to different commissioners or officers,
either within or without this state, to take the testimony of different
witnesses, or witnesses residing in different places, or the same com-
missioners or officers may proceed from place to place to take the
same. NOTICE — ^before taking the testimony of a witness, the person
suing out such commission shall give to each and every person known
to be interested in the subject-matter of such testimony, or his attorney,
or, if a minor, his guardian, or, if he has no guardian, or if his guardian
is interested, to such guardian ad litem as shall be appointed by the
court, or to his or her conservator, if he or she has one, two weeks'
notice, in writing, of the time and place when and where the testimony
will be taken, which notice shall state when and where the petition was
filed, the names of the parties and witnesses mentioned in the petition,
and a short statement of the subject-matter concorning which the
testimony is to be taken. NOTICE TO NONRESIDENTS, ETC.— notice
to nonresident parties, or such as cannot be found so as to be personaUy
served, and to unknown owners, may be given in the same manner as
is provided for notifying nonresident parties in suing out a commission
to take testimony in a case pending. COURT NOTICE — when in the
opinion of the court no sufficient provision is made by law for giving
notice to parties adversely interested, the court may order such reason-
able notice to be given as it shall deem proper. TAKING, CERTIFY-
ING TESTIMONY — every person who may think himself interested in
the subject of a deposition about to be taken, may attend, by himself
or his attorney, at the time and place of taking such testimony, and may
examine and cross-examine such deponent, and all such questions as
may be proposed, together with the answers thereto by the witness, shall
be reduced to writing in the English language, as near as possible in
the exact words of such deponent, which said questions and answers.



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§ 364] DEPOSITIONS. 821

wlien reduced to writing, shall be distinctly read over to tbe witneM,
and, if found to be correct, shall be signed by him in the presence of
the officer before whom the same is taken, who shall thereupon admin-
ister an oath or affirmation to such witness, as to the truth of the deposi-
tion BO taken, and shall annex at the foot thereof a certificate, sub-
scribed by such officer, stating that it was sworn to and signed by the
deponent, and the time and place when and where the same was taken;
and all such depositions shall be carefully sealed up and transmitted to
the clerk of the circuit court of the county from which such dedimus
shall have been issued, within thirty days from the time of taking;
who shall thereupon enter the same at large upon the records in his office,
and shall certify on the back of such deposition that the same has been
duly recorded, and return it to the person for whose benefit it shall have
been taken. A deposition taken under the provisions of the seven pre-
ceding sections, or a certified copy of the record thereof, may be used
as evidence in any case to which the same may relate, in the same man-
ner and subject to the same conditions and objections as if it had been
originally taken in the suit or proceeding in which it is sought to be
used; and parties notified as "unknown owners," in the manner herein-
before provided, shall be bound to the same extent as other parties.
ELECTION CONTEST— whenever a notice shall have been given of
intention to contest an election, either party may proceed to take
testimony of any witness, on giving to the adverse party or his attorney
ten days' notice of the time and place of taking the same, and one day
in addition thereto (Sunday inclusive) for every fifty miles' travel from
the place of residence of such party to the place where such deposition
is to be taken. If the party entitled to notice resides in the county
where the deposition is to be taken, five days' notice shall be sufficient.
A copy of the notice to take depositions, with proof of the service
thereof, with the deposition, shall be sealed up and transmitted by mail
or otherwise to the secretary of state, with an indorsement thereon
showing the names of the contesting parties, the office contested, and the
nature of the papers. The officer before whom depositions are taken
shall have power to compel the production of papers, and the attend-
ance of witnesses; and the same proceedings may be had to compel
the attendance of witnesses as are provided in the cases of taking
depositions to be used in courts of law and equity. Depositions in
actions before justices of the peace to be taken upon like notice and in
like manner.

i 864. In d ian a — Commission to take only necessary when outside
the United States. No order of court necessary; the clerk can issue it.
When the commission contains the name of the officer, his attestation
is sufficient, but if not containing^ the name and the party has no
official seal, then the certificate must be authenticated by the certificate
and official seal of the clerk or prothonotary of any court of record
where the officer exercises his duties. Must be filed with the court at
least one day before trial. Taken anywhere, before any judge, justice



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222 K0TARIB8 PUBUO. [§ 365

of the peaee^ notaiy, mayor or eitj recorder, clerk of a court of
record or commissioner appointed bj the court. Must be disinterested
person. Beasonable notice to be given the adverse party of the cause,
court, time, place and names of the witnesses. Officer can compel the
attendance of witnesses by reporting fact to the superior or circuit
court of the county. Deponent to be first sworn to testify the truth,
the whole truth and nothing but the truth. He shall then be examined
by the party producing him, then by the adverse party and by the
officer or parties if they desire. The deposition to be written by the of-
ficer or the deponent or some disinterested person, in the presence and
under the direction of the officer, read to or by the deponent and sub-
scribed by him. Officer to annex his certificate, stating that the deponent
was sworn according to law, who wrote the deposition, if in the presence
of the officer, whether the adverse party were present, time, place and
the hour of taking. Officer shall sign and attest the certificate, and
seal it if he has an official seal, the same to be then sealed up in an
envelope, directed to the clerk of the court where the cause is pending,
indorse on the envelope the names of the parties and the witnesses whose
depositions are inclosed.

I 866. lowft'— May be taken before any person authorized to admin-
ister oaths, or by commissioners on interrogatories. If the action is by
equitable proceedings and to be tried on written evidence, then, either
party may take the deposition. WHO MAT ACT — the clerk or judge of
any court of record or any commissioner of deeds appointed by the
governor of this state to act in another state, any notary, consul or
consular agent of the United States, within their jurisdiction. Beason-
able notice to be given the adverse party as to name of witness, time,
place, when and where taken. Cannot take on election day or the
Fourth of July. Party desiring deposition may select the commissioners
or the parties may agree, or the court may appoint any other individual.
NOTICE — ^when served on the attorney, ten days; on the party, five
days; allowance for travel of one day for each thirty miles. No party
is required to take depositions when the court is in actual session.
Notice to be accompanied with the interrogatories to be asked. WHO
TO SERVE NOTICE— the clerk of the court where the case is pending.
If in an inferior court, the clerk of the circuit court. CBOSS-INTER-
BOGATORIES — at or before the time the adverse party may file cross-
interrogatories. If not filed, the clerk shall file the following: 1. Are
you directly or indirectly interested in this action? apd if interested,
explain the interest you have. 2. Are all the statements in the fore-
going answers made from your personal knowledge? and if not, do your
answers show what are made from your personal knowledge, and what
are from information, and the source of that information? if not, now
show what is from information, and give its source. 3. State every-
thing you know concerning the subject of this action favorable to either
party. Notice, or notice and interrogatories, may be served by the same
persons on the same persons, in the same manner, and may be returned.



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§ 366] DEPOsmoKs. 223

and the return shall be anthenticated in the same waj, as should be an
original notice in the same cause when served other than by publication.
It may be served on the attorney of the adverse party personally. DEP-
OSITION COMMISSION FORM—issues in the name of the court and
under its seal. It must be signed by the clerk and need contain nothing
but the authority conferred upon the commissioner, instructions to guide
him, and a statement of the cause and court in which the testimony is
to be used, and a copy of the interrogatories on each side appended.
HOW TAKEN — person taking must cause the interrogatories pro-
pounded to be written out, the answers immediately underneath; as near
the language of the witness as practicable, if parties require it. Must
be read, sworn and subscribed to by the witness. Exhibits made by
the witness must be appended to the deposition. Officer to certify that
it was subscribed and sworn to by the deponent at the time and place
mentioned. The deposition, commission, etc., to be sealed up and re-
turned to the clerk of the court by mail unless otherwise agreed by
the parties. Neither party to be present, unless both are present, or
their attorneys, when taken upon interrogatories. The certificate shall
state such fact. The title of the cause to be on the outside of the
envelopment. When by the laws of any other state or country testi-
mony may be taken in this state to be used therein, the persons au-
thorized to take such depositions have power to issue subpoenas and
compel obedience thereto, to administer oaths, and to do any other
act of a court which is necessary for the accomplishment of their pur-
pose. Any sheriff or eonstable shall serve their subpcenas and make
return. If a party to a suit in his own right, on being subpoenaed,
fails to appear and testify, the other party may have a continuance, at
the cost of the delinquent. If the party shows that he could not have
a full personal knowledge of the transaction, the court may order his
pleading to be taken as true, but subject to reconsideration during the
term of the court. A deposition to be taken before a judge or justice
of the peace merely by name of office must contain an authentication
by the clerk of the court under his seal of office, the fact that the per-
son who took the deposition is really such officer. Taken in short-
hand, the writer shall be sworn to take correctly and truly, and make
correct extension into long hand, typewriting or print, the extension
to be certified by the person taking and shall be received as the depo-
sition. The shorthand notes shall be read to the witness, who shall
sign, and file them with the extension. A defendant mray examine
witnesses in civil and criminal cases, conditionally or on commission.

{ 866. Kansas — ^May be used only when the witness is not a resident
of or absent from the county, when age, infirmity or imprisonment pre-
vents, or when the oral testimony of the witness is not required. Either
party may take, after service upon the defendant. BEFORE WHOM —
IN THIS STATE — before a judge or clerk of a court of record, county
clerk, justice of the peace, notary public, mayor, chief magistrate of
any city or town corporate, before a master commissioner, or any person



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224: NOTARIES PUBLIC. [§ 367

tmpow«r«d by ip^cial commission. Autbority must be derived from the
■tate, if for use in the state. OUT OF THE ST^TE— for use in the
state — ^may be taken before by a jndge, justice or chancellor of any
eonrt of record, a justice of the peace, notary, mayor, or chief magistrate
of any city or town corporate, a commissioner appointed by the governor
of this state, or any person authorized by special commission from this
state. Officer taking must not be related or interested. Any court of
record in this state or any judge thereof can grant a commission. Person
must be named, court seal attached, written interrogatories prepared,
unless parties agree otherwise. Written notice to be given the adverse
party (unless a special commission) allowing time for travel and one
day's preparation, exclusive of Sunday. The action, name of court, time
and place to be specified. Adjoununent from day to day, if stated
in the notice. Notice of taking may be given by publication in the
county newspaper three consecutive weeks, when the adverse party
is absent or a nonresident of the state. If there is no county paper,
then the one circulating there generally. It must contain all that is
required in a written notice and proved in the usual way. If taken
by officers having an official seal, it must be authenticated therewith
and their signature. Officers having no official seal who reside out of
this state shall sign and certify to the deposition and in addition
have their act and qualification certified to by the official certificate
and seal of any secretary or officer of the territory having the great
seal thereof, or of the clerk or prothonotary of ai^y court having a
seal. If the deposition is taken in this state by any officer having
no seal or within or without the state by a special commissioner, the
officer's official signature is sufficient. The deposition to be written
in the officer's presence either by the witness, a disinterested person,
or by the officer, and subscribed to by the witness. It must be sealed
up and indorsed on the outside with the title of the cause, the name of
the officer and by him addressed and transmitted to the clerk of the
court of the action, there to remain sealed until opened by order of
the court. It may be read in any stage of the action, or other action
in the same matter. The officer taking must certify on the deposition
that the witness was first sworn to tell the truth, the whole truth and
nothing but the trutli, by whom the deposition was reduced to writ-
ing, that it was written and subscribed in the officer's presence, that
it was taken at the time and place specified in the notice. The filing
of the deposition must be at least one day before the trial. FEES — ^for
taking in this state — swearing each witness, 10c; each subpoena, attach-
ment, order or commitment, 50c; deposition, per 100 words, and certifi-
cate, 15c; deposition can be held for fees. The fees of the sheriflP and
witnesses shall be added to the cost of taking. Witness fees, per day,
$1.50; witness fees before a justice of the peace, per day, 75c, and per
mile travel, 5c.

I 367. Kentucky— IN THE STATE— taken before examiners, judge
or clerk of court, justice of the f^aee or notary public. OUT OF THE



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§ 368] DEPOSITIONS. 225

STATE— before a commissioner appointed by the governor, commissioner
appointed by consent of parties or by order of court, judge of court,
justice of the peace, mayor of a city or notary public. MANNER OP
TAKING — ^reasonable notice to adverse party, allowing one day for
each thirty miles of travel, one day of preparation, or two days if
more than one hundred miles. Adjournment permitted if attendance
of witness cannot be procured, but officer's certificate must note cause,
posting of notice, etc. If more than three days' notice, party to whom
notice is given may require interrogatories. Interrogatories may be
taken on consent or court may require on stating of account, where
parties are under disability, or have not appeared or where parties are
numerous. When no cross-interrogatories, clerk must file. Officer taking
deposition may subpoDua witness. Statements of witness to be written.
Neither party nor agent to be present. Officer's certificate must state
when and where deposition was taken that witness was duly sworn,
that it was written and subscribed in officer's presence, or by officer,
and read, and whether parties or agent were present. Deposition to
be delivered to clerk of court where action is pending.

I 368. liOuifllana IN THE STATE— the commissions to take may be
issued to a justice of the peace or any person authorized to administer
oaths. The interrogatories to be served on the adverse party three days
previous to forwarding them. When interrogatories have been annexed
to the commission and communicated to the adverse party or his coun-
sel, notice of time and place is unnecessary. COMMISSIONERS OUT
OF COURT — the clerks of the parish and district courts of the state
(save New Orleans parish) are constituted commissioners to take depo-
sitions. A party to a suit pending, desiring depositions, shall apply to
the clerk of the court, who will proceed to take the testimony in
writing, either himself or through some disinterested person in his
presence, after giving, at least, two days' notice to the adverse party,
or their attorneys, of the time and place; if the party or his counsel
reside out of the parish, ten days' notice. The deposition shall be
sworn to and signed by the witness, certified to by the clerk, under the
seal of the court, and filed in the records of the suit. Should objections
be made to the taking of any party, the clerk to take down the question
and its answer and the objection made and by whom, on which the
court will decide. The clerks of the court are empowered to compel
attendance of witnesses, by subpcona or attachment, in the name of
the court. In the parish of Orleans, notaries public and clerks of dis-
trict courts are appointed commissioners, with all powers granted to
the clerks of courts outside, they may proceed to take, on twenty-four
hours' notice to the adverse party or his counsel, of the time and
place. When taken, the depositions to be inclosed in an envelope and
delivered to the clerk of the court where the suit is pending. Justices
of the peace in this state can compel the attendance of witnesses before
commissioners of other states taking depositions here. A party desiring
the testimony of witness in another state, to apply to any judge having



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226 NOTARIES PUBUC. [§ 369

jnrisdietion of tbe cause, and not in open conrt, and it shall be sufficient
simply to swear to its materiality. Service of three days' notice to be
given the adverse party. Commission may issue any time thereafter.
When the commission is returned, the party to use it must, after
filing it in the clerk's office, file a notice or take a rule to serve
on the adverse party, or his counsel, to show cause why the same should
not be used as testimony. The adverse party is bound to urge his
objections to any irregularities before trial. If the witness resides out
of the parish, in or out of the state, be shall file his answers to the
interrogatories within the period fixed by court, on the motion of the
party interrogating. Notice of order fixing delay, with copy of inter-
rogatories, to be served on the attorney representing the party interro-
gated; provided that when such party resides out of the parish his
answers shall be taken by commission. FEES— for constable or sheriff —
subpcBuaa, 50c; attachments, $1.00; for commissioners, notice and copy,
25c; each subpcsna or attachment and copy, 25e; writing deposition,
per 100 words, 20c; affixing seal, 25c; swearing witness, 20e.

I 369. Ifalne — Allowed when deponent is aged, infirm, sick or unable
to attend, or resident out of, or is absent from the state, or bound
to sea, going out of the state, or more than sixty miles from place
of trial, or is a judge of the supreme, superior or probate court and
prevented by official duty; when deponent resides in another town
from the trial, or was resident of same town, but subsequently re-
moved or died; when deponent confined in prison until after trial.
May be taken before a justice of the peace, notary public, or a com-
mission, when the same are disinterested parties. On application to
a justice of the peace, or notary public, he may issue a summons to
any deponent, except the adverse party, to appear at a designated
time and place to give his deposition and shall issue notice to the ad-
verse party to be present. The deposition may then and there be
taken by him or any other justice or notary, but the deposition of the
adverse party may be taken by commission. Notice to adverse party
shall be served on him or his attorney, by reading it in his presence
and hearing, or by giving it to him or leaving at his place or last
abode an attested copy. Service may be made by officer or other per-
son and proved on his affidavit. No attorney is recognized unless his
name is indorsed upon the writ, or the summons left with defendant,
or he has appeared for the party in the cause, or given notice in writ-
ing that he is attorney for the adverse ptfrty. Notice by the justice
or notary to one or more of the plaintiffs or defendants is sufficient.
The adverse party to be allowed one day for each twenty miles' travel,
Sunday excepted. Verbal notice is sufficient, and when taken out of
the state and not under a commission the adverse party shall have
due notice. A witness may be compelled to attend and depose, but
not to travel more than thirty miles. Deponent to be first sworn to
tell the truth, the whole truth and nothing but the truth. Then ex-
amined by the party producing him, verbally or by written interroga-



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§ 369] DEPOSinoNB. 227

tories, and then by the adverse party, by the justice and parties, if
they see cause. Deposition to be written by the officer, or the de-
ponent or some disinterested person, in the presence and under the
direction of the officer; it shall be read to or by the deponent and ,
subscribed to by him. If deception is used in taking, the deposition
may be rejected. The officer, after the taking, shall certify and an-
nex to the deposition: that the witness was sworn and when; by whom
the deposition was written, and in his presence and under his direo-
tion; whether the adverse party was notified and attended; the cause
and names of parties; the trial court, time and place of cause for
taking. The officer shall deliver the deposition to the court, or shall
close and seal it up and direct it to^the court or referees. A deposition
shall not be used at trial if it can be shown by adverse party that
the cause for no longer exists. OBJECTIONS — to the competency of a
deponent or to questions or answers may be made when the deposition is
produced, but if taken on written interrogatories the objection shall be
made before it is answered. Depositions may be used in a second suit
in the same cause. The court may admit or reject depositions taken
out of the state. Justices of the supreme court may issue commissions
to take, outside the state, for use in suits in the state. Depositions



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 27 of 50)