Gaughe v. Laroche

Headnote

On an application for an examination of an adverse party as a witness under section 391 of the Code, it is not the practice to make an order in such cases, that such party attend and be examined. The notice provided for by that section, specifying the time, place, and the Judge before whom the examination is to be heard, is sufficient without an order. The 392d section seems to require that a summons shall be issued by the Judge to compel the attendance of the party, such as was issued under the Revised Statutes, upon a conditional examination. (2 R. S. 393, § 10.)

Therefore, both the notice under section 391 of the Code, and the summons under the Revised Statutes, appear necessary, at least to lay the ground for a punishment, or process to punish, as for a contempt.

If the party refuse to attend and testify, he maybe punished as for a contempt, and his complaint, answer, or reply may be stricken out. (§ 394.)

Thus, then; if the applicant finds it most important to have the actual examination, he may procure the attendance by the warrant under the statute. If he is content with the remedy given by the 894tli section, he may adopt that, and have the pleadings of such party stricken out, and no doubt may proceed as for con

tempt, or may have either mode of redress. Where it is required that the party to be examined produce books and papers, the proper course is the service of a subpoena duces lecum. (Reported in 14 How. Pr. R. 451.)