Original proceeding. Certiorari issued on the petition of relators commanding the district court of Meagher county to certify to this court the transcript of its record and proceedings on the application of James E. Shook for an order allowing the examination of relators preparatory to the commencement of an action which Shook represents that he expects to bring against them.
On the return day the respondent court filed written motion to quash the writ and, without waiver thereof, made return thereon.
The application to the respondent court states:
"The application of James E. Shook respectfully shows:
"I. That the applicant expects to be a party to an action in said district court, and in the action he expects George Woodard and Mable Woodard Eyman will be adverse parties.
"II. That the names of the witnesses to be examined and their places of residence are: George Woodard, on a ranch near Martinsdale, Meagher County, Montana.
"Mable Woodard Eyman, Castle Rock, Washington, who now, and for many months last past, has been living with the said George Woodard at his place of residence.
"III. That a general outline of the facts expected to be proved is: that George Woodard and Mable Woodard Eyman *Page 587 have appropriated for themselves property which in fact belonged to Argo Woodard, deceased, and to Emma Woodard, deceased; that applicant is one of the heirs of the said Argo Woodard and of the said Emma Woodard, and as such has been damaged by such appropriation; that the said George Woodard and Mable Woodard Eyman deny said property belonged to said deceased persons; that all of these things have happened in the said County of Meagher; that the said George Woodard and Mable Woodard Eyman know, and have records, books, accounts and papers which will show, the facts and circumstances pertaining to such appropriation and to the extent of said damages, and that they are necessary and material witnesses for the applicant on the trial of said expected action, whose testimony is and will be necessary and material to your petitioner in the defense of said expected action.
"Wherefore the applicant prays for an order directing an examination of said George Woodard and Mable Woodard Eyman, before some person to be designated by your honor, and at such time and place and upon such notice to the parties in interest as your honor may direct, and directing the said George Woodard and Mable Woodard Eyman to bring with them, and have then and there, all records, books, accounts and papers which will or might throw light upon the facts expected to be proved."
Upon the above application the respondent court made the following order:
"Upon the application of James E. Shook, praying for the perpetuation of the testimony of George Woodard and Mable Woodard Eyman, it is hereby ordered that the depositions of said George Woodard and Mable Woodard Eyman be taken before Mary E. Pearson, a Notary Public, in and for the State of Montana, at the Court House, in the town of White Sulphur Springs, County of Meagher, State of Montana, on the 13th day of November, 1947, at 2:00 o'clock P.M. of that day.
"Ten days' notice of the taking of said deposition shall be *Page 588 given, and said deposition when taken shall be returned to the Clerk of this Court, Meagher County, State of Montana.
"Dated at White Sulphur Springs, Montana, this 28th day of October, 1947.
"F.V. Watts District Judge"
Three days after the making and filing of the above order, to wit on October 31, 1947, the attorney at law representing James E. Shook in said proceedings, personally served upon relators a copy of the aforesaid application and court order and a notice addressed to them and signed by said attorney notifying relators of the time and place at which they should present themselves before a notary public for the taking of depositions and giving notice that relators should bring with them and have "then and there, all records, books, accounts and papers which will or might throw light upon the facts expected to be proved as outlined in the application for said order," a copy of said application being attached to said notice.
Relators urge that Shook's application, supra, is insufficient to warrant the order made by the district court; that the order is in excess of jurisdiction and that the order and proceedings are violative of sections 7 and 27 of Article III of the Constitution of the state of Montana.
The proceedings in the district court were instituted under sections 10686-10692, Revised Codes of Montana 1935.
These statutes are for the perpetuation of testimony but they are not discovery statutes.
The application must be made in good faith for the purpose of[1] obtaining, preserving and using material testimony (Irving v. Superior Court, 79 Cal. App. 361, 249 P. 236) and a sham application must be denied. Cailleaud v. Superior Court, 108 Cal. App. 752,292 P. 145.
The court's order did not authorize the inspection of[2] relator's records, books, accounts or papers. No subpoena duces tecum was issued or served upon relators and there was and is no authority for commanding that relators at the time and *Page 589 place set for the taking of their deposition have "then and there, all records, books, accounts and papers which will or might throw light upon the facts expected to be proved as outlined in the application for said order." The notice executed by Shook's attorney is not a substitute for a subpoena duces tecum.
The application for order to perpetuate testimony sets forth as the "general outline of the facts expected to be proved" that "George Woodard and Mable Woodard Eyman have appropriated for themselves property which in fact belonged to Argo Woodard, deceased, and to Emma Woodard, deceased," and that "the said George Woodard and Mable Woodard Eyman deny said property belonged to said deceased persons."
The application also sets forth that the Woodards have records, books, accounts and papers which will show the facts and circumstances pertaining to such appropriation and that they are necessary and material witnesses for the applicant on the trial of his expected action.
These latter allegations are of course no part of the "general outline of the facts expected to be proved" but merely state the nature of some of the evidence by which the proof is to be made.
The order in the case does not require the witnesses to bring and have with them before the magistrate named to take the testimony, any records, books, papers or effects, and therefore any question as to the order being in excess of jurisdiction in that respect as it was in the case of State ex rel. Pitcher v. District Court, 114 Mont. 128, 133 P.2d 350, is not here before us.
While the statement of "the facts expected to be proved" may be held to constitute a scant compliance with the demand of the statute for a "general outline of the facts," it is so indefinite and the "outline" is so faint, that it might fail in its purpose to obtain the testimony of a witness who would refuse to testify under an objection that the testimony sought is not pertinent nor relevant to any issue. "A witness * * * must * * * answer all pertinent and legal questions." Sec. 10673, *Page 590 Rev. Codes of Montana 1935. The following section of the Code, 10674, declares that "A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself."
Section 10675, Revised Codes, provides that "It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and * * * to be examined only as to matters legal and pertinent to the issue."
These statutes were cited in a case where contempt was charged against a witness who refused to answer questions and this court said "to answer as a witness, then, means to answer pertinent and legal questions." State ex rel. Bacorn v. District Court,73 Mont. 297, 236 P. 553, 554.
Whether a deposition be taken in a proceeding to perpetuate[3, 4] testimony, or in any other matter or case where depositions may be taken, it appears that an issue should be tendered by the affidavit, application or complaint, sufficiently definite to disclose that the testimony sought is relevant and pertinent to the framed or proposed issue. What is said in this regard is because in the arguments and briefs herein, counsel devote quite some part thereof to the right to compel the witnesses named in the application to bring before the magistrate their records, books and papers. In the case at bar however, no subpoena duces tecum was issued, — merely a notice and demand to the proposed witnesses to appear with such records. The order of the district court allowing the examination of the witnesses contained no such requirement and in this respect it was correct. The only order the court makes is the one prescribed in the statute, allowing the examination, and designating the officer named before whom the deposition is to be taken, and directing the notice thereof to be given the named adverse parties. The process by which the attendance of the witness is required is by a subpoena. Sec. 10618, Rev. Codes.
In their petition for the writ filed in this court relators[5] aver "that they have no plain, speedy or adequate remedy at law and that there is no appeal from said order of said district *Page 591 court." However, it must be remembered that the order complained of was made by the district court without notice to relators, they being the adverse parties, and that such order under the provisions of section 9776, Revised Codes, "may be vacated or modified, without notice, by the judge who made it; or it may be vacated or modified on notice, in the manner in which other motions are made."
Hence relators should have availed themselves of the remedy afforded by section 9776, supra, before seeking relief in this court. At the time relators filed their petition in this court counsel's attention was called to the provisions of section 9776, Revised Codes, but such statute is poorly indexed and seems to have been but little used in the past by the practicing attorneys in the state. However, we are here directing attention to the relief available under such statute as it will be the policy of this court in the future to require that application be first made to the district court for relief in similar cases before applying to this court for a writ.
The only matter before this court is whether Shook's[6] application complies with the requirement of the statute, section 10687, Revised Codes. In our opinion the application meets, though barely, the literal requirement of the statute. Accordingly, the motion to quash the writ is sustained and the proceeding in this court dismissed.
Associate Justices Choate, and Gibson, concur.