Concurring- Opinion.
Roby, J.7. The statute permits a party to be examined as a witness, either at the trial, or conditionally, or upon commission. §517 Burns 1901, §509 R. S. 1881. Where the examination is taken before the trial, as in the case at bar, the practice obtaining in the case of other witnesses examined by deposition is applicable. The notary before whom the examination is taken has no> power to compel the witness to testify. §8039 Burns 1901, §5964 R. S. 1881; Burtt v. Pyle (1883), 89 Ind. 398; Wehrs v. State. (1892), 132 Ind. 157; Keller v. B. F. Goodrich Co. (1888), 117 Ind. 556. In case of his refusal to testify “such fact shall be reported by the officer to any circuit or superior court of the county, or the judge thereof, and such court or judge shall order such witness to attend and testify.” §430 Burns 1901, §426 R. S. 1881. If a party might refuse to answer at his own option, the statute per*601mitting bis examination would be worthless. Upon the other hand, if his pleadings might be stricken out for refusing to answer any question asked him, he would be at the mercy of his adversary, and might' be deprived of his constitutional rights. It follows that he may decline to answer, pending a ruling by the court or judge.
It affirmatively appears that the officer taking the examination did not report the refusal of the witness, as it would have been his duty, upon request, to have done. Waiving any irregularities in the manner in which the question was presented to the court, it appears that an order was made under which appellant could have proceeded with the examination, and that it declined to avail itself of it.
I therefore concur in the affirmance of the judgment, but do not assent to any expression tending to cast doubt upon the power of the court to enforce the penalties specified in §521 Bums 1901, §513 R. S. 1881.