
    Ex parte TAYLOR.
    (No. 3363.)
    (Supreme Court of Texas.
    March 24, 1920.)
    1. Depositions <&wkey;25 — Proper court may honor letters rogatory.
    The power of a proper court to honor a request of a court in an independent jurisdiction, expressed by letters rogatory, for the use of its pz-ocess in aid of obtaining the deposition of a witness whose testimony is material in a cause pending in the latter, is inherent, and does not depend on statute.
    2. Depositions <&wkey;25 — Court under no compulsion to respect letter rogatory.
    The court to whieh a letter rogatory or request is addressed by the court of another state, for the use of its process in aid of obtaining the deposition of a witness, is under no compulsion to respect it, being a matter within its discretion.
    3. Depositions &wkey;>59 — Court will protect witness whose deposition is taken on letters ro-gatory from foreign court.
    In the execution of the request of a foreign court, expressed by letters rogatory, for the use of its process in aid of obtaining the deposition' of a witness, it is the duty of the court to see that the witness is protected in all of his legal rights, and while the relevancy and materiality of the testimony adduced is for the determination of the court having -jurisdiction of the cause, the court executing the request will see that the witness is not compelled to give evidence which is privileged.
    4. Depositions <&wkey;>25 — District court of Dallas county has power to honor letters rogatory.
    Under the general jurisdiction possessed under the Constitution, it was within the power of the district court of Dallas county to honor the request of a foreign court for its . aid in obtaining a deposition from a witness, and to order the witness to appear before a notary, who had been issued a commission, to take the testimony and give his oral deposition.
    Original application by Thomas Taylor for a writ of habeas corpus prayed to he directed against the Sheriff of Dallas County.
    Application denied, and relator remanded to sheriff.
    Pope & Young, of Dallas, for relator.
    Crane & Crane, of Dallas, opposed.
   PHILLIPS, C. J.

The Circuit Court of Cook County, Illinois, in a suit there pending of Nancy J. Wicks v. The Tribune Company, issued, on November 20, 1919,-a. commission to Jack A. Schley, a 'notary public of Dallas County, Texas, for the taking of the oral deposition of the relator, Thomas Taylor. The notary caused Tayíór’dri be served •with, a subpoena for the .purpose of obtaining his appearance, but Taylor, refused to appear before him, ; Thereafter, on , January 17, 1920, the Circuit Court of Co.ok County,- Illinois,. in the form of a letter rogatory, made request of the District Court of Dallas County, that by appropriate process it cause the witness Taylor to appear before the notary, or some one authorized by it, and give his oral deposition for use in the cause pending in the former court. The letter rogatory recited that Taylor’s testimony was material in the cause and justice could not be completely done between the parties without it, as given by oral deposition; the issuance of the previous commission at the instance of the defendant after due notice to the plaintiff; Taylor’s refusal to appear before the notary ; and, in substance, that the formalities of the Illinois laws had been complied with in respect to the giving of notice for the taking of the deposition.

The District Court of Dallas County, Hon. E. B. Muse, presiding, on January 19, 1920, honored the request so made of it, and issued its writ commanding the witness to appear before the notary, Schley, on Januray 30, and give his deposition on oral interrogatories as might be propounded by the attorneys fop the respective parties in the Illinois suit.

Taylor refused to obey this writ. Thereupon, The Tribune Company, defendant in the Illinois suit, filed an ancillary proceeding in the Dallas County District Court against Taylor to have him adjudged in contempt. , He was cited to appear, and on examination announced to the court that he would refuse to give his oral deposition in obedience to its order. The court adjudged him in contempt and remanded him to the custody of the sheriff to be confined until such time as he would consent to obey its order.

The question presented is one of jurisdiction — whether it was within the power of the District Court of Dallas County, under the proceedings recited, to order the relator to appear before the notary and give his oral deposition. If the court had the authority to make the order, it was within its authority to enforce it, and to hold the relator in contempt for its disobedience.

The power of a proper court to honor the request of a court in an independent jurisdiction expressed by letters rogatory, for the use of its process in aid of obtaining the deposition of a witness whose testimony is material in a cause pending in the latter, while perhaps not frequently called into exercise, is inherent, and does not depend upon statutes. It exists to prevent a failure of justice. It is related to the administration of justice in its best sense. Men, generally, owe the duty of giving their testimony to courts of justice in all inquiries where it may be material. Courts of justice of different countries or states, therefore, are, in aid of justice, under a mutual obligation to assist each other in obtaining testimony upon which the right of a cause may depend. There must be the judicial power somewhere to prevent what may amount to the defeat of justice through the recalcitrant conduct of a material witness.

This obligation of courts of independent jurisdictions grows out of necessity — the necessity that the administration of justice be u'ntrammeled and unobstructed. It rests upon the comity of states, and may be said to proceed from the law of nations. The issuance of letters rogatory for the purpose is derived from the civil law. The power is one which has always obtained in courts of chancery.

The court to which the letter rogatory, or request, is addressed, is upder no compulsion to respect it. It is within its discretion to refuse to honor it. It is a. matter, as has been said, resting upon comity. But if it he a court of appropriate jurisdiction, there is no question as to its power to honor it and by its process execute it.

In the execution of the request, it is the duty of the court to see that the witness is protected in all of his legal rights. In general, the relevancy and materiality of the’ testimony adduced is for the determination of the court having jurisdiction of the chuse; but the court executing the request will see, for instance, that the witness is not compelled to give evidence which is privileged.

Under the general jurisdiction possessed under the Constitution by the District Courts, it was within -the power of the District Court of Dallas County to honor the request of the Illinois court and to order the witness to appear before the notary and give his oral deposition, a method for taking the testimony of witnesses having the express sanction of the laws of this State.

The following authorities may be consulted upon the general question, and sustain the ruling here made: Greenleaf on Evidence, see. 320; 4 Jones on Evidence, sec. 400; Weeks on Depositions, sec. 128; State v. Bourne, 21 Or. 218, 27 Pac. 1048; Keller v. Goodrich Co., 117 Ind. 556, 19 N. E. 196, 10 Am. St. Rep. 88; In re Whitlock, 51 Hun, 351, 3 N. Y. Supp. 855; Anonymous, 59 N. Y. 313; In re Martinelli, 219 Mass. 58, 106 N. E. 557; Dowagiac Mfg. Co. v. Lochren, 143 Fed. 211, 74 C. C. A. 341, 6 Ann. Cas. 573.

The case of Marshall v. Irwin, 280 Ill. 90, 117 N. E. 483, cited by the relator, — the further citation from 18 Corpus Juris, 682, being founded upon its holding, — is not an opposing authority. There, the commissioner attempting to obtain the deposition of a witness in Illinois upon a commission issued by the court of another State, filed a proceeding in the Illinois court to have the witness adjudged in contempt for refusing to testify, and he was so adjudged by Le court. It was held that the commissioner had no authority under the Illinois statutes to procure such an order. The case did not, in any “way, involve the power of the court to respect the request of another court to aid it in obtaining the deposition of a witness within its jurisdiction. The court’s assistance, there, had not been invoked by the court of the other State, and it was not attempting to enforce any order made in virtue of such application to it.

■ The relator is remanded to the custody of the Sheriff of Dallas County. 
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