I dissent. It would seem to be unnecessary to here consider the fact that the superior court made an order requiring the petitioner to obey the notary's subpœna, as it is practically admitted by the majority opinion that the statute furnished no authority for the making of such an order, and that the making of such an order would not add to the legal obligation of petitioner to obey the subpœna. The majority opinion is based entirely upon the theory that under subdivision 9 of section 1209 of the Code of Civil Procedure, providing that "The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court. . . . 9. Any other unlawful interference with the process or proceedings of a court," the refusal of a person to obey a subpœna issued by a notary public, before whom his deposition was to have been taken upon notice, is a contempt of the authority of the court in which the action or proceeding is pending, and that such court has power to punish such person therefor.
It is admitted that this conclusion is directly the reverse of that reached by this court in Bank, in the case of Lezinsky v.Superior Court, 72 Cal. 510, and that decision is expressly overruled. For more than fifteen years the Lezinsky case has been accepted without question as a proper construction of our statutory law, so far as the question here involved is concerned; and notwithstanding the statement therein contained, that "Whether or not the power to enforce the attendance of witnesses out of court should be enlarged is a question for legislative determination," there has been no amendment *Page 16 of our code provisions in this respect. The legislative determination that such power should not be enlarged is fully demonstrated by this absence of further statutory enlargement, and to now give a different construction to the statute would seem to be purely judicial legislation. Regardless of this, I see in the majority opinion, which is apparently based upon the supposed necessities of the situation, no answer to the reasoning of this court in the Lezinsky case. As was said in that case, the right to take a deposition upon notice, without any order of court therefor, is a mere statutory privilege, and can be exercised and enforced only in the manner and to the extent provided by the statute which gives it. The taking of such a deposition is in no true sense a "proceeding" in or of a court ofjustice, within the meaning of subdivision 9 of section 1209 of the Code of Civil Procedure, which, in my judgment, furnishes no authority for the order in question. The order of the superior court adjudging petitioner guilty of contempt should be annulled.
McFarland, J., and Lorigan, J., concurred in the dissenting opinion.