Cailleaud

Petitioner seeks by certiorari to review an order of the superior court directing the taking of depositions to perpetuate testimony under section 2083 et seq., of the Code of Civil Procedure.

The steps necessary to enable a party to have a deposition taken to perpetuate testimony are found in section 2084. The proceeding must be initiated by a verified petition of the applicant showing that he expects to be a party to an action in a court in this state, or “that the proof of some fact is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit may at the time be anticipated”. The petitioner’s attack upon the proceedings in the superior court is based upon the ground that the applicants have not pleaded any facts which bring them within the terms of this section and that, therefore, the superior court was without jurisdiction to make the order.

The application upon which the proceedings were initiated alleges that the applicants are husband and wife, that the husband has executed a will in which he has devised property of considerable…