The testimony in the case of a contest provided for in Section 17-16-50 must be taken by deposition under commission issued by the clerk of the court where the statement of contest is filed, which commission must issue upon the party applying for the same making and filing an affidavit stating the name of the witnesses, the place of residence of such witnesses, and that the testimony sought and expected is material. The depositions must be taken on interrogatories filed in the office of the clerk after making and filing the affidavit and of the interrogatories and affidavit and the names and residence of the commissioner or commissioners proposed to be appointed, 10 days' notice must be given the adverse party by service on him or her personally or by leaving at his or her usual place of residence or business a copy of the interrogatories and affidavit, to which must be appended notice of the name and residence of the commissioner proposed to be appointed. Such service must be made by the sheriff or a constable of the county, and within 10 days thereafter such adverse party may file cross-interrogatories, to which the party filing the interrogatories may file rebutting interrogatories, and thereafter commission may issue. The commissioner must give each party five days' notice in writing of the time and place of taking the depositions, which notice may be served by the sheriff or a constable of the county. If the witnesses reside or are to be examined within the county, the adverse party is entitled to demand that they be examined orally, separate and apart from each other, on giving notice within the 10 days allowed to file cross-interrogatories that such examination is required; and if such notice be given, the commission issued must not be accompanied by the interrogatories filed, and must authorize and direct the commissioner to examine the witnesses orally, separate and apart from each other, after giving each party five days' notice of the time and place of the examination. In the execution of all commissions to take testimony under this section, the commissioner must conform to and observe the requirements of the statutes and rules concerning the taking of depositions in civil actions and has and may exercise all the power and authority by the statute conferred on commissioners; and against defaulting witnesses all such proceedings may be had and taken as are authorized by the statutes and rules.
Last modified: May 3, 2021