The petitioner, K. G. Coutts, was a party
i. Practice; continuance; jurisdiction: review. I. Turning first to the order of continuance and the judgment for costs, it is further urged in support of the attack thereon that no written motion and no affidavit was filed for such continuance, and that there was no legal evidence before the court to justify the order entered. It is sufficient to say at this point that ho record was preserved of the facts or evidence presented to the court in support of the plaintiff’s request for a continuance. And, if there were, we do not think a writ of certiorari is available to the petitioner to test the validity of such order. The pendency of the case before the court conferred undoubted jurisdiction upon it to grant a continuance and to make a proper order as to costs. This power existed quite independent of section 4661. If the court erred in such order, Coutts, being a party defendant, had a complete and adequate remedy by appeal. If he lacked a formal record of the evidence under which the court acted, he was in no worse condition for the purpose of an appeal than he is for the purpose of a writ of certiorari. Moreover, it was within his power to have had a record made during the term and to have the same incorporated in a bill of exceptions available to him for the purpose of an appeal. No attempt was made along this line, nor was any attempt made in any way to assail the validity of the return of the bailiff upon the subpoena, nor was any question raised as to the truth of such return. We are satisfied, therefore, that there
2. Contempt: review. II. Turning to the other branch of the case, a somewhat different question is presented. The proceeding being for an alleged contempt of court, a -writ of certiorari is the only method of review provided by the statute.
The sections of the statute involved are as follows:
Sec. 4664. Dor a failure to obey a valid subpoena without a sufficient cause or excuse . . . the delinquent is guilty of a contempt of court and subject to be proceeded against by attachment.
See. 4665. Before a witness is so liable for a contempt for not appearing, he must be served personally with the process, by reading it to him, and leaving a copy thereof with him, if demanded.
3. Same: failure to obey sub-pœna. It is urged by the appellant petitioner that he is not liable for contempt under these sections of the statute, because the subpoena was not actually read to him. Taking the testimony of Hunting as true, as the trial court had a right to do, the subpoena was shown to him and offered to be read by the party serving it. It was not read to him only because he himself expressly waived the reading. Did. such waiver on his part relieve him from ’ the duty to obey the subpoena? We can not think so. It would be trifling with the law to say that a person can waive some formality involved in the serving of a subpoena, and by reason of such waiver be absolved from all duty to obey the same. It was the right of the petitioner to have such subpoena read to him before he could be required to obey it. But he was not bound to insist upon such formal right. He had as much right to waive the formality as he had to insist upon it. Doubtless, if he' did neither, nothing short of a reading would constitute a good service. But he did expressly waive it. Such waiver is necessarily
4. Same ’ Much of the argument in behalf of the petitioner is directed to the want of official character of the bailiff Hunting, and, therefore, to the invalidity of the unverified return. This was purely a question of evidence. Hunting had power to serve the subpoena regardless of his official character. Whether his return on the subpoena should have been verified or not bore only upon the admissibility of such return in evidence. The guilt of the petitioner was not made to depend upon the sufficiency of such return. If guilty, his guilt existed quite independent of the fact of such return. Whether such return was sufficient, and was admissible in evidence as such, has become quite immaterial because Hunting was used as a witness and testified to the truth of the facts as recited in the return. This leaves no ground of complaint to the petitioner as to the competency of the proof by which his guilt was established.
5. Same: official knowledge of offense. III. The invalidity of the contempt proceedings is urged upon the further ground that the provisions of section 4464 were not complied with, in that the proceeding was not based upon an affidavit showing the nature of the transaction. Section 4464 is as fol- .. . lows: Unless the contempt is committed m the immediate view and presence of the court, or comes officially to its knowledge, an affidavit showing the nature of the transaction is necessary as a basis for .further action in the premises.” We think that the presentation of the subpoena with the return thereon, even though irregular in form, and the failure of the witness to appear, was a sufficient basis for the proceeding as for a contempt coming
We find no proper ground of interference with the oj.’der complained of.
The petition for the writ must therefore be dismissed. ■ — Affirmed.