SOUTHERN PACIFIC CO v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 1, California.

SOUTHERN PACIFIC CO. v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

Civ. 12397

Decided: September 12, 1939

W.I. Gilbert, of Los Angeles, for petitioner. J.H. O'Connor, Co. Counsel, and Douglas De Coster, Deputy Co. Counsel, both of Los Angeles, for respondent.

The petition for rehearing herein is denied.

The requirement of the statute that an affidavit be filed as a prerequisite to the issuance of a subpoena duces tecum necessarily presupposes that a judicial determination as to the sufficiency of the affidavit to warrant the issuance of a subpoena duces tecum will be made before its issuance. In fact, the affidavit required to be filed must actually be sufficient to show that the rights of all parties have been protected, and this determination, of course, cannot be made by a ministerial officer.

PER CURIAM.