Slike strani
PDF
ePub

Sec. 431. When a deposition has been once taken, it may be read Deposition, when

it may be read. in any stage of the same action or proceeding by either party, and shall then be deemed the evidence of the party reading it.

CHAPTER VI.

OF DEPOSITIONS TAKEN OUT OF THIS STATE.

Section 432. The testimony of a witness out of the state may be Deposition of

witness out of taken by deposition in an action at any time after the service of the state. summons or the appearance of the defendant; and in a special proceeding, at any time after a question of fact has arisen therein.

Sec. 433. The deposition of a witness out of this state shall be Deposition to taken

upon commission issued from the court, under the seal of the commission. court, upon an order of the judge, or court, or county judge, on the application of either party, upon five days' previous notice to the other. It shall be issued to a person agreed upon by the parties, or if they do not agree, to any judge or justice of the peace selected by the officer granting the commission, or to a commissioner appointed by the governor of this state to take affidavits and depositions in other states. Sec. 434. Such proper interrogatories, direct and cross, as the Settling

interrogatories: 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 commission, 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.

Sec. 435. The commission shall authorize the commissioner to ad- Authority of minister 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 envelope directed to the clerk or other person designated or agreed upon, and forwarded to him by mail or other usual channel of conveyance.

Sec. 436. A trial, or other proceeding, shall not be postponed by Non-return of reason of a commission not returned, except upon evidence satisfac- when not to tory to the court that the testimony of the witness is necessary, and that proper diligence has been used to obtain it.

commissioners.

stay trial.

CHAPTER VII.

OF PROCEEDINGS TO PERPETUATE TESTIMONY.

Section 437. The testimony of a witness may be taken and per- Testimony may petuated, as provided in this chapter.

Affidavit to obtain order to perpetuate.

Sec. 438. The applicant shall produce to a district judge, or to a county judge, an affidavit stating :

1st. That the applicant expects to be a party to an action, in a court of this state:

2d. That the testimony of a witness residing in this state, whose place of residence is stated, is necessary to the prosecution or defence of such action ; and generally the facts expected to be proved:

3d. That the party named who is expected to be adverse to the applicant resides or is at the time in this state. The judge may, thereupon, in his discretion, make an order allowing the examination, and prescribing how long before the examination the order and notice of

the time and place thereof shall be served. When deposition Sec. 439. Upon proof of personal service upon the person who is may be taken.

expected to be the adverse party of the order, copy of the affidavit, and of a notice that the examination will be taken before a district judge, or county judge of the county wherein the witness resides, or may be at a specified time and place; such judge may take the deposition of the witness, and the examination may, if necessary, be

adjourned from time to time. Examination, Sec. 440. The examination shall be by question and answer, unless how conducted, etc.

the parties otherwise agree. The deposition, when completed, shall be carefully read to and subscribed by the witness, then certified by the judge, and immediately thereafter filed in the office of the clerk of the county where it was taken ; together with the order for the examination of the witness, the affidavit on which the same was granted, and the affidavit of service of the affidavit, order or notice.

Sec. 441. The affidavits filed with the deposition, or a certified compliance with these provisions. copy thereof, shall be primary evidence of the facts stated therein, to

show compliance with the provisions of this chapter. When deposition Sec. 442. If a trial be had between the persons named in the affi

davit as parties expectant, or their successors in interest, upon proof of the death or insanity of the witness, or of his inability to attend the trial by reason of age, sickness, or settled infirmity, the deposition or a certified copy thereof may be used by either party subject to all legal objections. 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.

Evidence of

may be used on the trial.

CHAPTER VIII.

ADMINISTRATION OF OATHS AND AFFIRMATIONS.

SECTION 443. Every court of this state, every judge or clerk of any and affirmations court, every justice of the peace, and every notary public, and every

Who may administer oaths

not a christian.

officer authorized to take testimony or to decide upon

evidence in any proceeding, shall have power to administer oaths or affirmations.

Sec. 444. When a person is sworn who believes in any other than Oath by person the christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such.

Sec. 445. Any witness who desires it may, at his option, instead of Afirmation, taking an oath, make his solemn affirmation or declaration, by assenting, of an oath. when addressed, in the following form : “You do solemnly affirm, that the evidence you shall give in this issue (or matter), pending between and

shall be the truth, the whole truth, and nothing but the truth.” Assent to this affirmation shall be made by the

False affirmation, answer, “I do." A false affirmation or declaration shall be deemed

etc., deemed

perjury perjury, equally with a false oath.

[ocr errors]

CHAPTER IX.
OF DOCUMENTS, AND MISCELLANEOUS PROVISIONS AS TO

INSPECTION

RECORDS AND WRITINGS.

Order for

may be made.

Section 446. Any court in which an action is pending, or a judge inspection of thereof, or a county judge, may, upon notice, order either party to book yetene give to the other within a specified time an inspection and copy, or permission to take a copy of any book, document, or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. If compliance with the order be refused, the court may exclude the book, document, or paper, from being given in evidence; or if wanted as evidence by the party applying, may direct the jury to presume it to be such as he alleges it to be; and the court may also punish the party refusing, for a contempt. This section shall not be construed to prevent a party from compelling another to produce books, papers, or documents, when he is examined as a witness.

Sec. 447. There shall be no evidence of the contents of a writing, Evidence of the other than the writing itself, except in the following cases :

writing. 1st. When the original has been lost or destroyed; in which case proof of the loss or destruction shall first be made:

2d. When the original is in the possession of the party against whom the evidenee is offered, and he fails to produce it after reasonable notice :

3d. When the original is a record or other document, in the custody of a public officer:

4th. When the original has been recorded, and a certified copy of the record is made evidence by statute:

5th. When the original consists of numerous accounts or other

When alterations in written instrument must be accounted for.

Judicial records of this state or the U. S., how proved.

of a sister state,

3d. That the copy is duly attested by a seal, which is proved to be

documents, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

Sec. 448. The party producing a writing as genuine, which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or altera. tion. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made. If he do that, he may give the writing in evidence, but not otherwise.

Sec. 419. A judicial record of this state, or of the United States, may be proved by the production of the original, or a copy thereof, certified by the clerk, or other person having the legal custody there

of, under the seal of the court, to be a true copy of such record. Judicial records Sec. 450. A judicial record of a sister state may be proved by the how proved. production of a copy thereof, certified by the clerk or legal keeper of

the record under the seal of the court, to be a true copy of such record, together with the certificate of a judge of the court, that the person making the certificate is the clerk of the court, or legal keeper of the record, and in either case that the signature is genuine, and the certificate in due form.

Sec. 451. A judicial record of a foreign country may be proved by of a foreign country, how the production of a copy thereof, certified by the clerk, with the seal

of the court annexed, if there be a clerk and seal; or by the legal keeper of the record with the seal of his office annexed, if there be a seal, to be a true copy of such record : together with a certificate of a judge of the court, that the person making the certificate is the clerk of the court, or the legal keeper of the record, and in either case, that the signature is genuine, and the certificate in due form; and also together with the certificate of the minister or ambassador of the United States or of a consul of the United States, in such foreign country, that there is such a court, specifying generally the nature of its jurisdiction, and verifying the signature of the judge and clerk, or other legal keeper of the record.

Sec. 452. A copy of the judicial record of a foreign country shall also be admissible in evidence upon proof:

1st. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it :

2d. That such original was in the custody of the clerk of the court, or other legal keeper of the same: and,

Judicial records

proved.

The like.

the seal of the court where the record remains, if it be the record of a court; or if there be no such seal, or if it be not a record of a court, by the signature of the legal keeper of the original. Sec. 453. Printed copies in volumes of statutes, code, or other Written laws of

other states, etc., written law, enacted by any other state, or territory, or foreign gov- how proved. ernment, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in the courts and judicial tribunals of such state, territory, or government, shall be admitted by the courts and officers of this state, on all occasions, as presumptive evidence of such laws. Sec. 454. A seal of a court or public office, when required to any

be impressed. writ or process, or proceeding, or to authenticate a copy of any record or document, may be impressed with wax, wafer, or any other substance, and then attached to the writ, process, or proceeding, or to the copy of the record or document, or it may be impressed on the

How seal may

paper alone.

TITLE XII.

OF THE WRIT OF CERTIORARI AND OF MANDAMUS.

CHAPTER I.

TIIE WRIT OF CERTIORARI, OR REVIEW. SECTION 455. The writ of certiorari may be denominated the writ Certiorari, how

denominated. of review.

Sec. 456. This writ may be granted on application by any court When granted. of this state, except a justice's, or recorder's, or mayor's court; the writ shall be granted in all cases when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer; and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy. Sec. 457. The application shall be made on affidavit by the party Application

therefor, how beneficially interested, and the court may require a notice of the appli- made. cation to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.

Sec. 458. The writ may be directed to the inferior tribunal, board How directed. or officer, or to any other person having the custody of the record or proceedings to be certified.

When directed to a tribunal, the clerk, if there be one, shall return the writ with the transcript required.

Sec. 459. The writ of review shall command the party to whom it Form of writ is directed to certify fully to the court issuing the writ, at a specified

« PrejšnjaNaprej »