Majority
p. 925Michael Pratt, Respondent, v. Henry D. McKee and William W. Beers, Doing Business under the Name of Eastern Construction Company, Appellants.
Headnote
Order of June 39, 1914, reversed, and stay vacated, without costs. Appeal from order of July sixth, refusing to modify the prior order, dismissed, without costs. The removal of defendant Beers to Honolulu since the last trial affords no ground to stay proceedings, or to impose the condition that such defendant shall again acquire a residence address within this State. Such a defendant now living without the State may be
p. 926
examined by deposition under chapter 9 of article 3 of the Code of Civil Procedure;[1] and in a proper case plaintiff could apply for an open commission under section 893 of the Code of Civil Procedure.[1] The trial should not be stayed to compel a defendant to come back and take up his residence in this State, where the course laid down by the Code to take such testimony has not been followed.
Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred.