In re Carter

3 Or. 293

• Court: Multnomah County Circuit Court, Oregon
• Decided: January 15, 1871
• Status: Published

Opinion

Upton, J.

filed the following opinion, denying the order.

Where a statute provides that a court under given circumstances may make a specified order, it sometimes imports an absolute duty to make the order. In such cases it is said “may” is construed to mean “shall.” Where the intention is not only that the court may make the order, but also that- the suitor may of right demand it, the right of the suitor implies a duty of the court. Where a matter becomes a right of a suitor it is no longer within the discretion of the court.

Upon the previous applications, I was under the impression that the statute for taking evidence de bene esse was of that character; my attention not being called to the peculiar wording of the last clause of section 849.

It is there unequivocally shown that the court or judge is called upon to exercise a discretion; although the words of the first clause of the same section, if that clause stood alone, would import that a petitioner filing the prescribed verified petition could claim the order as a right. It was my impression at the time of making the previous orders, that the discretion of the judge was limited to the question whether the facts enumerated in the statute, appeared from an inspection of a duly verified petition.

But the statute provides that, where these facts do appear, ' “the judge may thereupon in his discretion make an order allowing the examination, prescribing the place thereof, and how long before the examination the order and notice of the time and place thereof shall be served.”

> This language does not import a discretion as to the time, place and notice only. But the judge may, in his discretion, make or deny the order. This is not an arbitrary power to grant or refuse, as may be most pleasing to the judge, but it is a judicial discretion to be exercised according to the principles of equity for the benefit and protection of parties interested.

I am not called upon to decide whether, upon a first application, an adverse party would be entitled to file affidavits in opposition to the petition, or whether a notice to the adverse party on a first application could properly be ordered. I deemed the making of a third application a sufficient reason for requiring the notice and permitting counter affidavits. Although the petitioner has exonerated himself from any charge of negligence in regard to the former proceedings, I think I am called upon by the present condition of the case to look into the counter affidavits.

Some of the positions assumed, and some of the statements made by the petitioners’ counsel in the argument, obviate the necessity of passing upon questions of fact in regard to the objects for which the petition is presented.

He charges that the witness Thomas, upon whose personal identity, as the alleged father of Finice Caruthers, depends the title of a vast estate of which these two lots were a part, has conveyed his interest to, and is under the personal influence and control of the parties adverse to the petition, and that they persistently deprive the petitioner of access to the witness. That it would be hazardous for parties to the equity suit to take said Thomas’ deposition and thus make him their witness in the important matter, without first knowing the nature of his testimony. And he argues from these facts that justice requires that this order should be made to enable the petitioner to discover, or rather to compel a discovery of, the facts within the knowledge of the witness Thomas.

I think it sufficiently appears from these admissions and the papers on file, that the leading object of this proceeding is to ascertain what the witness Thomas will testify, with a view to prepare to meet and controvert his statements, rather than for the purpose of perpetuating the evidence he may depose.

The object of the statute is to enable a party to perpetuate testimony, and it would be an abuse of the discretion vested in me if I should knowingly pervert the object of the statute, and make it subserve a purpose the legislature never intended. '

If I' am correct in these conclusions of fact, the effect of granting the prayer of the petition would be to make the order operate as a habeas corpus to bring a person before a tribunal without such a showing as would authorize that writ, and to compel the party to appear, under an assumption that the object is to perpetuate testimony, when the real object is quite different. Such a proceeding is hot contemplated by this statute, and it would be a violation of those personal rights that should be protected by the law.

If I thought this proceeding was had for the purpose of perpetuating testimony essential to the protection of the petitioner in regard to the two lots, and that that was the leading motive in making the application, I would feel bound to grant the order without regard to the 'effect it might have upon other parties or in another case. But under the circumstances disclosed, I am satisfied the order should be denied.