Frazer v. Lynch

Citations

• 88 Cal. 621
• 26 P. 344
• 1891 Cal. LEXIS 748

Syllabus

<p>Subpiena Duces Tecum — Disobedience of Defendant — Striking out Answer — Contempt — Error of Law — New Trial. —• An order of the trial court that the answer of the defendant be stricken from the files because the defendant has disobeyed a subpoena duces tecum is not a judgment for contempt, but if erroneous, constitutes an error of law occurring during the trial of the action, which, if excepted to, may be corrected on appeal from the judgment and order denying a new trial.</p> <p>Id.—Construction of Code—Protection of Adverse Party. — The provision of section 1991 of the Code of Civil Procedure, that in case of disobedience of a subpoena, “ if the witness be a party, his complaint or answer may be stricken out,” is intended for the protection of the adverse party, whose substantial rights are or may be affected by such disobedience, as well as a punishment for the contempt itself.</p> <p>Id.—Discretion — Striking out Answer. — The power conferred upon the court to strike out an answer should be exercised with guarded discretion, with a view to promote substantial justice; and it is error for the court to strike defendant’s answer from the files because of disobedience of a subpoena duces tecum, where the disobedience is by an illiterate person, without the advice of counsel, and where defendant’s counsel, before the making of the order, offer to admit everything that could be shown by the papers sought to be produced.</p>