
    WOOLLEY et al. v. WIGHT, Judge.
    No. 4303.
    Decided August 20, 1925.
    Rehearing denied September 12, 1925.
    (238 P. 1114.)
    1. DEPOSITIONS — COURT MUST REQUIRE WITNESS TO TESTIFY OR Show Cause. Where witness failed to appear to testify on deposition after notice served under Comp. Laws 1917, §§ 7178, 7179, it was proper for the trial court to require witness to testify or show cause for refusing.
    2. Couets — Supreme Court May Enforce by Mandamus Rights Established by Law. Supreme Court has jurisdiction to enforce by mandamus rights fairly and manifestly established by law which have been been refused by an inferior tribunal.
    
    3. Depositions — Notice Sufficient to Summon Witness Who is Pasty to Action. In summoning a witness who is a party to the action, notice under Comp. Laws 1917, § 7179, is sufficient, and the additional service of a subpoena was merely cumulative.
    4. Mandamus — Won Lie to Requise Judge to Compel Witness to Testify. Mandamus will lie 'to require judge to compel witness to testify on deposition after notice, whether or not it was actual contempt of court to refuse, as it was a plain palpable disregard of the law.
    Headnote 1. 18 C. J. p. 677.
    Headnote 2. 15 C. J. p. 1121.
    Headnote 3. 18 C. J. p. 1099 (Anno.).
    Headnote 4. 38 C. J. p. 628.
    Mandamus by Ernest R. Woolley and others against L. B. Wight to compel respondent, as Judge of the District Court, to require witness to testify or show cause why he should not be punished for contempt.
    WRIT GRANTED.
    
      Vim Dam & Draper, of Salt Lake City, and Arthur Wool-ley, of Ogden, for plaintiffs.
    
      Wilson, Loofbourow & Barnes, of Salt Lake City, for defendant.
    
      
      
        Ketchum Coal Co. v. Christensen, 48 Utah, 214, 159 P. 541, distinguished.
    
   THURMAN, J.

This is a proceeding in mandamus. The plaintiffs are defendants in a case pending in the district court of Salt Lake county. They have filed their answer to the complaint of plaintiff. Since filing their answer one Nathaniel Baldwin, by leave of court, has filed a complaint in intervention, from which it appears that he is an interested party in said cause, and is the party for whose benefit the case is being prosecuted. The plaintiffs herein, as defendants in said cause, have not filed their answers to Baldwin’s complaint, and have attempted to procure his deposition before filing their answer. For this purpose, on the 8th day of July, 1925, plaintiffs herein, as defendants in said cause, served notice upon said Baldwin and his attorneys that they would take his deposition before G. B. Hartley, a notary public for Salt Lake county, at the hour of 10 a. m. July 14, 1925. Attached to the notice was the affidavit of E. R. Woolley, one of the defendants in said action and plaintiff herein, showing that Baldwin was a party to said action and was a necessary witness for the defendants. On the same date and as a part of said proceeding, the clerk of' said court issued a subpoena in the usual form directed to Baldwin, commanding him to appear before said notary, specifically naming him and designating* his office or place of business, at 10 o’clock a. m. July 14, 1925, and to bring with him certain books, records, and documents, particularly described in the subpoena.

The notice and subpoena were personally served on Baldwin on the 8th day of July, 1925, and at the same time his per diem and mileage for attendance as a witness were tendered to and received by him as provided by law. Baldwin failed to appear and attend as a witness at the time and place designated in the notice and subpoena, and no excuse was given by him for his failure to attend. Upon his failure to appear in pursuance of said notice, thereafter, on the 15th day of July, 1925, the said E. R. Woolley filed an affidavit with the clerk of said court, setting forth the above facts in detail, and praying that Baldwin be adjudged guilty of contempt and that an attachment issue against him; that he be brought before the court to answer for his contempt in not obeying the process of the court, and for general relief. Thereafter, on the 16th day of July, 1925, the application of Woolley for the relief prayed for in his affidavit came on for hearing before the defendant, Hon. L. B. Wright, sitting as a judge of the district court, and the application was denied.

It is alleged in plaintiffs’ complaint filed herein that the defendant, as judge of said court, refused to punish Baldwin for contempt or to issue an attachment against his person or to require him to appear and show cause why he should not be punished, or to require him to appear before said notary, G. B. Hartley, to give his deposition in said cause, and still refuses to make any order in the proceeding to compel obedience to said subpcena and the process of said court.

Such, in substance, are the facts upon which plaintiffs in the instant case base their application for a writ of mandate.

An alternative writ was issued. Defendant appeared by general demurrer, and also demurred to the jurisdiction of the court, and moved the court to quash the writ.

For their right of action in this proceeding plaintiffs rely on the following provisions of the statute, Comp. Laws Utah 1917, § 7178, which, as far as material here, reads:

“The testimony of a witness in this state may be taken by deposition in an action at any time after the service of the summons or tbe appearance of the defendant; and, in a special proceeding, after a question of fact has arisen therein in the following cases:
“1. When the witness is a party in the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended.”

Section 7179:

“Either party' may have the deposition taken of a witness in this state, in either of the cases mentioned in the next preceding section, before a judge or officer authorized to administer oaths, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is within that section. Such notice must be at least five days, adding also one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given, unless, for a cause shown, a judge, by order, prescribe a shorter time. When the shorter time is prescribed a copy of the order must be served with the notice.”

In support of tlie demurrer and motion to quasb, defendant’s counsel contend that this court is without jurisdiction because the defendant, as judge of the district court, had before him all the facts and the law applicable thereto and rendered his decision thereon; that the decision of' a judicial tribunal, under such circumstances, is not subject to correction by a writ of mandate issued by a superior court, and in support thereof cite the following authorities: Ketchum Coal Co. v. Christensen, District Judge, 48 Utah, 214-221, 159 P. 541; High on Extraordinary Legal Remedies (3d Ed.) §§ 149, 150, 154, and 155; Ex parte Newman, 14 Wall. 152, 20 L. Ed. 877; Ex parte Burtis, 103 U. S. 238, 26 L. Ed. 392; American Casualty Co. v. Fyler, 60 Conn. 448, 22 A. 494, 25 Am. St. Rep. 337; Heilbron v. Superior Court, 72 Cal. 96, 13 P. 160; Spencer v. Lawler, 79 Cal. 215, 21 P. 742; State v. Horner, 16 Mo. App. 191.

We refer to these authorities solely for the benefit of the reader if he chooses to examine them. They are not applicable to the case at bar. If the purpose of the proceeding before the defendant, as judge, had been solely to have Baldwin punished for contempt and the proceeding here was for the purpose of compelling the defendant, as judge, to punish Baldwin for contempt, we Would then have before us a different question, and the authorities referred to by counsel might be more or less persuasive. The plaintiffs here, in the proceeding before the defendant judge, not only prayed that defendant punish Baldwin for contempt, but also prayed for such other relief as to the court might seem meet and proper.

It was meet and proper in that proceeding to at least require Baldwin to testify in response to the notice, or show cause for refusing. This, in our opinion, is the controlling question. The proposition that this court is without jurisdiction of the subject-matter because the defendant, as judge, considered the law and the facts and rendered a decision thereon only applies in cases where the inferior tribunal to whom the writ is directed has acted in matters within its discretion. It has no application in eases where it refuses to enforce a right clearly and manifestly established by law. The contention of defendant’s counsel, carried to its logical sequence, would oust this court of jurisdiction in mandamus proceeding on practically every question decided by an inferior judicial tribunal, for such tribunals invariably pass upon questions of both law and fact in rendering their decisions. The contention of defendant’s counsel upon this point can, therefore, have no application to the instant case.

party, and that the service of a subpoena was merely cumulative at most. The fact, therefore, that a subpoena was

Counsel for defendant further contend that, as the testimony was to be taken before a notary public, the clerk of the district court was without authority to issue the subpoena. In support of this view they cite and rely on Comp. Laws Utah 1917, § 7128, subd. 2, which contemplates that the subpoena shall be issued by the officer before whom the deposition is to betaken. It is doubtful if the statute applies to a proceeding of this nature. Here the testimony sought is that of a party who has appeared in the case and subjected himself to the jurisdiction of the court. The testimony sought is to be used in the very cause in which he has appeared. It appears to the court that( in such a case the usual and ordinary process of the court may be invoked to enforce a right clearly established by law. If this were a case in which the witness was a stranger to the proceeding, not before the court as a party, the contention of counsel might be entitled to serious consideration.

But eliminating entirely the service by subpoena, in the instant case plaintiffs appear to have complied with the literal terms of the statute which authorizes taking the deposition of a party. Section 7178, above quoted, recites the cases in which depositions may be taken. It will be conceded that Baldwin’s relation to the case in the district court brought him within tl^e literal terms of the statute. Section 7179 provides the method of procedure. It provides that the deposition may be taken before an officer authorized to- administer oaths. A notary public is such an officer. It provides for serving notice on the adverse party of the time and place of examination, together with an affidavit showing that the case is within the terms of section 7178. It provides that the notice must be for at least five days before the examination unless the time is shortened by order of the court. Nothing is said about a subpoena in cases of this kind. Service of notice accompanied by proper affidavit is all that is required. The court is of opinion that the notice provided for in section 7179 is all that is necessary in taking the deposition of a actually issued and served was not a matter of which Baldwin could complain. The Legislature evidently intended to provide a simple form of procedure entailing as little burden and expense as possible upon the parties for whose benefit the statute was enacted. In these circumstances, the court does not feel justified in indulging in doubtful interpretations involving other statutes, and thereby render the procedure complex and burdensome. The sections quoted standing alone furnish an unerring guide, and plaintiffs proceeded in accordance therewith in their efforts to procure the- deposition in question.

It is, however, further contended by defendant’s counsel that, as the district court made no order in the premises, there could therefore be no contempt of court.

We are not so much concerned as-to whether or not there was an actual contempt of court. There was, undoubtedly, a plain palpable disregard of the law — a law enacted to facilitate the administration of justice between litigants — a law which conferred an absolute right upon any litigant coming within its terms. The fact that plaintiffs here had the right to take Baldwin’s deposition, and that they had proceeded strictly in accordance with the statute in attempting to take it, and that Baldwin had refused to appear, was brought to the attention of the defendant judge by a proper proceeding, with a prayer for such relief as was meet and proper. No relief whatever was granted, but, on the contrary, relief was denied ,and there was no plain, speedy, or adequate remedy at law. We are'of opinion that it is a proper case for a writ of mandate; that the honorable district judge, defendant here, had the power, and ,under the circumstances, it was his duty, to direct Baldwin to permit his deposition to be taken, and, in case of his refusal, that he be cited to show cause why he should not be punished for contempt.

The writ'prayed for in the complaint is granted, without costs against the defendant.

GIDEON, C. J., and FRICK, CHERRY, and STRAUP, JJ., concur.  