Graham v. Colburn — 14 How. Pr. 52

Majority

p. 52

SUPERIOR COURT.

Graham agt. Colburn.

Headnote

The judge before whom proceedings supplementary to execution, under § 292 of the Code, are pending, has no power to order a commission to be issued for the examination of witnesses residing out of the state, to take testimony to be used on such proceedings.

At Chambers,

Feb., 1857.

The plaintiff having obtained, under § 292 of the Code, an order requiring the defendant to appear before a judge of this court, and answer eoncerning( his property, now moves, upon affidavits and notice, that a commission issue t'o examine witnesses residing out of the state, on the ground that their testimony is material and necessary for the plaintiff in the proceedings aforesaid. The motion is opposed on the ground that the court has no power to issue a commission in such a proceeding.

p. 53

--,for plaintiff,

--,for defendant.

The chapter of the Code relating to proceedings supplementary to the execution, does not, in terms, authorize a commission to be issued.

The party, who is the judgment-debtor, is required to appear before the judge making the order, or before a referee appointed by the court or judge. Sections 295 and 296 make it the duty of witnesses, when duly subpoenaed, to appear before such judge or referee. Those two are the only sections which confer authority to compel the attendance of witnesses, or to procure testimony. Section 301 provides for the allowance of witnesses’ fees.

These sections contemplate, and provide for, summary proceedings, to be had in the county in which the judgment-debtor resides, if he be a resident of this state. (§ 292.)

If any witness disobey any order of the judge or referee, duly served, he may be punished by the judge as for a contempt. (§ 302.)

They confer no express authority to issue a commission to examine witnesses residing out of the state.

Instead of conferring it, either expressly or by implication, their general scope and meaning is repugnant to the existence of a legislative intent to grant such authority.

The motion must be denied.