Mayer v. Noll

Headnote

Examination of parties before tidal—on whom, order for, must be served— Code of Civil Procedure, seciwns 870-873.

An order for the examination of an adverse party as a witness before the trial of the action, under sections 870-873 of the Code of Civil Procedure, must be served upon the party to be examined as well as upon his attorney. Service upon the attorney alone will not authorize an attachment against the party, nor an order striking out his pleading.'

On the 13th of May, 1878, the plaintiffs obtained an order, under sections 870-873 of the Code of Civil Procedure, for the examination of the defendants as witnesses before the trial of the action. The order directed that service be made upon the parties to be examined or upon their attorney. Service was made upon the attorney alone. The defendants, who resided at Port Wayne, Indiana, failed to appear for examination at the appointed time and place. The plaintiffs, thereupon, applied for an order striking out the defendants’ answer as a-punishment for their failure to appear. Upon the argument, which was had at special term before Daniels, J., the defendants’ counsel objected, that the service of the order for examination was incomplete and that it should have been served upon the parties to be examined as well as upon their attorney, as had been held in Riddle agt. Gram (5 Weekly Dig., 277). The objection was overruled and the defendants’ answer was stricken out, unless within five days the defend

ants consented to appear and submit to an examination under the original order theretofore made. The defendants declined to give such consent and appealed.

Note.—A ruling to the same effect was made by the Saratoga special term of the supreme court (7 Weekly Digest, 312), in which judge Bocees (onp. 314) says: “ Without further elaboration of this subject here I will remark that I have carefully considered the case of Biddle agt. Oram (5 Weekly Dig., 277) and am entirely satisfied with the line of reasoning there adopted.” [Rep.