Hanke v. Harlow

The opinion of the court was delivered by Burch, J.: The appeal is taken from an order restraining the appellant from taking the depositions of J. H. Peterson and Inez Peterson, who were parties to the suit and who resided in a county adjoining the one i'n which the action was pending. There was evidence that the Petersons intended to be present at the trial, that there was nothing in their situation or circumstances to prevent them from attending the trial, and that the appellant had no reason to apprehend that they would not be there to testify. There was further evidence that the appellant was not proceeding in good faith, that she was merely “fishing,” and that her purpose was to harass and oppress her adversaries. Under these circumstances the court did not abuse its discretion in issuing the order. The case of In re Abeles, 12 Kan. 451, upon which the appellant relies, [739] does not apply. The distinction between the right to the deposition of a party and of a witness not a party is pointed out in the case of In re Merkle, Petitioner, 40 Kan. 27, 30, and the court properly applied the principle recognized in the cases of In re Cubberly, Petitioner, 39 Kan. 291, and In re Davis, Petitioner, 38 Kan. 408. Besides this, the court in which the action is pending always has the power to protect a party whom it restrains in this manner from any injurious consequences of the order, should any result. Since, the appeal was taken the case has been tried. At the time of the trial the Petersons were both living within the jurisdiction of the court, and were accessible as witnesses. Consequently their depositions could not have been read. (Code 1909, §§ 337, 358.) J. H. Peterson was a witness at the trial, testified fully, and was examined by the appellant. Any purpose which the appellant might have entertained to use the testimony of Inez Peterson was abandoned and she was not called. Therefore, aside from the fact that the restraining order was originally justifiable, the appellant has not been prejudiced. The appellant says she has moved for a new trial and hopes to obtain one. Should she succeed, her substantial rights have not been infringed. The judgment of the district court is affirmed.