Fiske v. Twigg

Headnote

Supplementary proceedings—depositions taken on, must be filed.

Proceedings supplementary to execution are special proceedings within the intent of § 825 Code Civ. Pro., and the depositions of witnesses taken thereon must be filed with the county clerk, though they were not used upon the application for the order, which was thereafter entered, appointing a receiver, and though the testimony was taken down and written out by a stenographer paid by plaintiff’s attorney.

Appeal by plaintiff from order granting motion of defendant" that plaintiff file in the office of the county clerk certain depositions of witnesses taken in a proceeding, supplementary to execution, instituted by plaintiff.

The witnesses were examined in the supplementary proceeding by virtue of section 2444 of the Code of Civil Procedure. Section 2433 declares that such a remedy is a special proceeding. Section 825 declares that in this city, a return or other paper in a special proceeding, where no other disposition in prescribed by law, must be filed in the office of the clerk of this county. The affidavit of plaintiff’s attorney, in opposition to the motion, alleged that the testimony of said witness was taken and written out by a stenographer, who was paid by plaintiff’s said attorney, and after the depositions were duly verified, they were taken by said attorney and by him retained. An application was made for a receiver in said proceedings, and from the recitals in the order appointing such receiver it appeared that said order was granted upon the testimony of the judgment debtor only.

The motion below was made by the judgment debtor.

The following opinion was rendered by the court below:

“Truax, J.—Supplementary proceedings are made special proceedings by section 2433 of the Code. The papers in a special proceeding must be filed in the office of the county clerk (§ 825). The affidavits mentioned in the moving papers appear to have been in these proceedings, and they should be filed along with the other papers. Motion granted; no costs.”

I. The examination of the witnesses is not a paper in a special proceeding in the sense meant by section 825 of the Code. A special proceeding is a prosecution by one party against another, for the enforcement or protection of a right, etc., other than by action (§§ 33, 34). An order to examine a judgment debtor is only made a special proceeding by section 2433, which provides that certain remedies, viz: the three mentioned in sections 25 and 32, are special proceedings. The right to be enforced is in that instance, simply a right to examine a debtor and his witnesses, which right is obtained and ends with such examination and appointment of receiver. We submit that it is clear that the examination of a witness is not such a paper in a special proceeding, as is required to be filed by section 825. Such papers are clearly those upon which the court or a judge thereof takes action. It was never intended by section 825 to make it obligatory to file testimony of various witnesses as to which it might well be, and in many cases would be, that truth in a subsequent action could only be elicited by the testimony of the various witnesses being kept from the inspection of each other. The word “paper” in section 825 does not mean every piece of paper upon which the title of the special proceedings may be written. It means to apply to special proceedings the rules of practice which obtain in actions, viz : that every paper in the cause upon which the court is called to act shall be filed, and no other need be.

■ II. The fact that the testimony of those witnesses was reduced to writing does not make that writing necessarily a paper in the special proceeding. There is no requirement

that examinations in supplementary proceedings shall be reduced to writing (or shall be filed, unless by section 825). For the convenience of the creditors, and at their sole -expense, this testimony was taken stenographically, and after-wards written out. This motion is not a motion to compel the filing of ‘ ‘ papers ” in a special proceeding, but is an attempt to take from its lawful -owners the possession' of property paid for by them, which is not a paper on which any action of the court or a judge was based.

III. At most it was not a matter of right for Twigg to have his testimony filed, but it was discretionary with the court; and its discretion we respectfully submit should have been exercised either by denying the motion, or else by ordering that upon being filed it should at once be sealed up, not to be opened except on notice. A court which has the power to exclude witnesses from the courtroom, has surely the power to compel the same result as to testimony taken ex parte, as this was (1 Greenl. Ev. § 432).