With much of what is stated in the prevailing opinion 1 concur. However, I am of the opinion that the writ should be made permanent. It is conceded that the affidavit and the notice of intention to take the depositions of Crowther and Jorgenson (two defendants in the main case) which were served February 8, 1935, on Mr. Hanson as attorney for Crowther and Jorgenson was not such service as required either of them to attend and submit to a compulsory examination.
In the case of Woolley v. Wight, 65 Utah 619, 238 P. 1114, 41 A.L.R. 433, this court had occasion to construe the statute relating to the taking of the depositions of parties to an action. In that case it was sought to take the deposition of one Nathaniel Baldwin who had appeared in the main case by a complaint in intervention. The affidavit and notice fixing the time, place, and person before whom Baldwin was required to attend for the purpose of having his deposition taken were served upon Baldwin and also upon his attorneys. There was also served upon Baldwin a subpoena which had been issued by the clerk of the court in which the action was pending. The per diem and mileage for the attendance of Baldwin as a witness were duly tendered to and received by him, "as provided by law." Baldwin did not appear. A citation was issued by the district court requiring him to show cause why he should not be punished for *Page 597 contempt of court, or why an order should not issue requiring him to attend before the notary and have his deposition taken. The district court upon a hearing refused to make any order on the theory apparently that the subpoena issued by the clerk of the district court was insufficient to require Baldwin's attendance. This court, in reviewing the proceedings, held that the subpoena issued was merely cumulative; that inasmuch as Baldwin had already been personally served with the proper affidavit and notice, wherein was specified the time, place, and person before whom he should appear, and it should be further noted that his per diem and mileage had been tendered and accepted by him, he was required to attend. The service of a subpoena was held to be merely cumulative, and was therefore unnecessary.
I feel that the construction of the statute as announced in the case of Woolley v. Wight, supra, is correct. It must necessarily follow that before a party may be required to attend and have his deposition taken, the proper affidavit and notice of the time, place, and person before whom the party is required to attend must be personally served upon the party, and if demand is made therefor his per diem and mileage must be paid before attendance can be insisted upon as a matter of right.
In the present case the affidavit and notice were not served upon either Crowther or Jorgenson, but were served upon Mr. Hanson, their attorney, instead. This of course was insufficient. Had Crowther and Jorgenson been personally served with the affidavit and notice which were served upon their attorney, and had their per diem and mileage been paid, as it was to Baldwin in the case of Woolley v. Wight, supra, then they would have been required to attend, and had they refused, it then would have been proper to issue a citation to show cause why they should not be punished for contempt or to show cause why an order should not be made requiring their attendance.
When Crowther and Jorgenson failed to appear pursuant to the notice served upon their attorney, the attorneys for *Page 598 the plaintiff Oliver obtained, from the trial judge before whom the main case was then and is still pending awaiting trial, an order to show cause why Crowther and Jorgenson should not appear and have their depositions taken. After a hearing on this application, the learned trial judge made the order that Crowther and Jorgenson "appear before the Honorable Pearle M. Bachle, a notary public at 1105 Continental Bank Building, Salt Lake City, county and state aforesaid, on Friday, the 1st day of March, A.D. 1935, at 3:00 o'clock P.M. on that day, then and there to appear and testify before Pearle M. Bachle." A copy of this order was duly served upon Crowther, and Jorgenson and upon its service, they demanded their per diem and mileage of the officers who made the service and also made the same demand upon the attorneys for the plaintiff Oliver, and informed these attorneys that they would attend provided their per diem and mileage were paid "as provided by law." This order was no more than a subpoena issued by the district court for the attendance of Crowther and Jorgenson to appear before the notary public. Under the decision of Woolley v. Wight, supra, it is necessary to serve upon the party the affidavit and notice specified in the statute. Where that is done, the order of the trial court renders the service of the subpoena cumulative and unnecessary. A compliance with the statute on the part of Mr. Oliver was necessary before either Crowther or Jorgenson would be required to attend and give their testimony before the notary public. In any event, having demanded payment in advance of their fees as witnesses and their mileage, they could not be obliged to attend even upon the court's order.
Crowther and Jorgenson were required to attend as witnesses and not otherwise. Their presence was being demanded by the plaintiff Oliver because he chose them as witnesses and he desired their testimony as such. R.S. Utah 1933, 28-5-8, provides:
"The fees and compensation of witnesses in all civil causes must be paid by the party who causes such witnesses to attend, and no witness *Page 599 shall be obliged to attend court in a civil cause when subpoenaed unless his mileage and fees for one day's attendance are tendered or paid to him on demand."
The trial judge could not abrogate this statute by making the order which he did. That a party to an action is entitled to witness fees when subpoenaed by his opponent is well supported by the authorities.
A party to a suit "is entitled to be paid as a witness where he is called to testify for his adversary or otherwise compelled to testify." 70 C.J. § 58, pp. 69, 70.
"A party to an action is as much entitled to prepayment of his fees when subpoenaed by his adversary as a third person." 26 Standard Ency. of Procedure, p. 520. Van Dusen v. Bissell, 29 How. Prac. (N.Y.) 481; Hewlett v. Brown, 14 N.Y. Super. 655, 7 Abb. Prac. 74; George v. Starrett, 40 N.H. 135. It was there held that where a party is compelled to testify for or give his deposition to be used by his adversary upon the trial, he shall be entitled to the same fees which are allowed by law to other witnesses. Fuller Buggy Co. v. Waldron, 49 Misc. 278,97 N.Y.S. 730.
Since it must be conceded that Crowther and Jorgenson would not be required to appear upon the service of the affidavit and notice, if on demand their fees and mileage were not paid as required by law, it must follow that they would not be required to appear when served with the order of the court immediately referred to if, upon demand, their per diem and mileage were not paid.
The plaintiff Oliver could not do indirectly what he could not do directly. Since he could not obtain their attendance without the payment of their fees in the first instance, he could not by thus getting an order require their attendance without the payment of fees.
In the prevailing opinion it is held that the making of the order by the court requiring the attendance of Crowther and Jorgenson before Pearle M. Bachle without the payment of their fees was mere error. In my opinion this was beyond its jurisdiction. As to facts, a distinction is to be observed as to those involving jurisdiction and those not. Erroneous *Page 600 rulings on facts not involving jurisdiction, of course, are mere error. But an erroneous ruling on facts involving jurisdiction, or upon which it depends, is more than mere error. Brown on Jurisdiction (2d Ed.) pp. 20 and 21. At page 21 in a note to the text above cited it is said:
"Where the jurisdiction and power to hear a case depends on the existence of the fact, that fact must be alleged or appear on the face of the record or the proceedings are coram non judice and void. Where the law provided that real estate could be sold by an administrator after the personal assets in his hands were exhausted, the exhaustion is a potential fact for the jurisdiction of the court. Hays' Adm'x v. McNealy, 16 Fla. 409."
It is said that petitioners were not guilty of contempt because of their failure to appear before the notary without tender or payment of witness fees but might be guilty of contempt because of their failure to appear before the notary on order of the court, which order, right or wrong, was required to be obeyed. But the question lies deeper than that. The question is: May a witness without tender or payment of fees, who makes seasonable demand therefor, be required to attend before a notary, or other officer, or even before the court, to give his testimony? The determination of the question involves one of mixed law and fact both essential to the exercise of judicial power to compel one to do so. Before the court is authorized to act it requires an affidavit or other pleading of jurisdictional fact invoking the power of the court. Among the essentials ofsuch jurisdictional facts is the fact of tender or payment offees. If that fact is wanting, power is wanting to compel or judicially require a witness to attend in order to give his testimony.
May it successfully be asserted that any power exists to order or require one to attend, even on the court, on a properly served subpoena when made to appear a failure to tender or pay fees on demand as a prerequisite of such attendance? I think not. Any such order would be coram *Page 601 non judice. For stronger reasons is, under such circumstances, an order of such command or requirement to attend before a notary
"disobedience of a void mandate, order, judgment, or decree, or one issued by a court without jurisdiction on the subject-matter and parties litigant, is not contempt." 13 C.J. § 14, p. 13.
For the reasons stated, I feel the writ should be made permanent instead of permitting the court below to dismiss the proceedings.
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