In September, 1896, an action was pending in the Court of Common Pleas of MeKane county, Penn., in which the National Transit Company and another were plaintiffs and the United States Pipe Line Company was defendant. The court in which that action was pending appointed a commissioner to. take the testimony in the city of New York of certain persons residing therein, as witnesses, to ■ be- used in that action. This testimony was to be taken by oral questions. . A proper application was made, as required by the Code, to a justice of this court, who issued a subpoena requiring the witnesses to appear before the commissioner at a time therein .
It is claimed on behalf of the appellant that no sufficient means is provided by statute- for compelling the attendance of witnesses upon the taking of testimony under a commission of this kind, or to require the witnesses who attend to answer material and proper questions, and, therefore, it is said that the court, by virtue of its inherent power to compel obedience to' its own mandates, has authority to issue such process as is necessary to compel the attendance of witnesses and to require them when they attend to answer such questions as ar.e proper to be put to them for the execution of the commission.
It was claimed on the other hand by the respondents that the judge who issued the subpcenas to compel attendance of witnesses' before the commissioner, pursuant to section 915 of the Code of Civil Procedure, acted solely under a statutory power in the exercise of an authority unknown to the common law, and that his mandate was not tire mandate of the court, -and that the only remedy for the disobedience to that mandate was such as was given by the statute, and consequently there was no power in the court to ’ make the order asked for here. This view was concurred in by the learned justice, below, and he acted upon it and denied the motion. To a certain extent we concur in the conclusion which he reached.
A proceeding to take testimony in this State for use in an action pending in the court of an other'State before a commissioner appointed by that court, is' entirely unknown to the common law. In the absence of any statute upon the subject, the Court of Chancery in this country assumed jurisdiction to compel the giving of testimony by. residents of the State to be used in a suit pending in a foreign country by a bill of discovery filed for that purpose.. (Mitchell v. Smith, 1 Paige, 287; Post & Co. v. Toledo, etc., R. R. Co., 144 Mass. 341.) That the Court of Chancery had jurisdiction was not admitted in the English courts, and even where that jurisdiction was exercised it was slow and expensive, but yet, until some statute was passed for
But we do not agree with his conclusion that the only remedy for a refusal to obey the subpoena, or to answer questions when the witness has appeared before the commissioner is that- given in .section 920 of the Code of Oivil Procedure. A short reference to the statutes on that subject will, we think, show that it has always been the policy of the law for the taking of testimony to be . used in a foreign State, not only to provide sufficient means to compel the attendance of witnesses before the commissioner, but also to prescribe the way in which the witnesses when they appear could be compelled to give testimony.
The first statute on the subject is found in the Revised Laws (1 R. L. 1813, p. 49), in which it is provided substantially that certain judicial officers might issue a summons requiring witnesses resident in this State to appear before them to give testimony in an action pending in another State. The statute prescribed the mode of service of summons, and the witness was required to obey it and to give testimony pursuant to its directions, and a way was pro-* vided to compel him to appear and to give testimony in obedience to the summons. By the Revised Statutes (2 R. S. 397, 398, §§ 29-32) this proceeding was amended in certain respects, and the
But we find in .sections 855, 856, and the subsequent .sections, a mode provided by Avhich a AA-itness, who is subpoenaed to. appear before a .commissioner in a case like this, may be -compelled to appear and be compelled to answer questions after he does appear, by imprisonment until such time as he shall obey the subpoena served upon him, and to answer such questions as he shall be required to answer. The provisions of these sections are substantially the same as those contained in the Revised Statutes above cited.(2 R. S. 400-402), and they are made to apply to a witness subpoenaed to give testimony before the person designated in the commission by the court of another State. (Code Civ. Proc. § 854.) "We see, therefore, in these sections that the system provided by'the Revised Statutes to compel obedience to the subpcena requiring a witness to appear before a commission is preserved, and the remedy Avhich is prescribed in those sections being the remedy provided by the statute for the enforcement of a statutory right is the only one which can be resorted to for that purpose. It is quité true that section 854 (above cited) provides that it does not apply to a matter arising or an act to be done in an action in a court of record ; but that clearly refers to a court of record in this State, because the body of the section does proAdde for certain things to be done in actions pending in the courts of another State.
Our conclusion upon the whole matter is, that for a refusal to appear before a commissioner appointed under section 915, upon a subpoena duly issued pursuant to the provisions of that section, or for a refusal to testify where the witness has appeared, his attendance or his testimony may be procured by proceedings taken under section 855 and the subsequent sections of the Code of Civil Procedure. But the remedy provided by those sections is exclusive in its nature, and no power is given to the court, acting as such, to enforce that remedy which by those sections is especially devolved upon a judge of the court and not upon the court.
For these reasons the order must be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.