A hearing was granted in this cause after decision by the District Court of Appeal (First District, Division Two) [ 287 Pac. 560 , 561]. After further consideration of all of the issues involved we adopt the following portions of the opinion of the District Court of Appeal, of which Mr. Presiding Justice Nourse was the author, as the opinion pro tanto of this court:

Other points seemed to be worthy of consideration when the petition for hearing was granted.

It appears from the petition that on the twenty-fourth day of October, 1929, letters rogatory were secured by the county clerk of the city and county of San Francisco from the office of the consul-general of Guatemala at San Francisco, by a letter of transmission, addressed to said clerk. Attached to the letters rogatory was an affidavit of the petitioner herein purporting to have been subscribed and sworn to on July 15, 1929, before G. K. Donald,-the American consul-general at Guatemala. This affidavit set forth that the affiant is a stockholder of the Ocos Railroad Company, which is now dissolved; that affiant intends to file a suit in the courts of Guatemala against Adolfo Stahl and The American Finance Commerce Company alleging that the contemplated defendants and Schwartz Brothers, the predecessors in interest of the contemplated corporation defendant, fraudulently and illegally acquired control and possession and retained the profits arising from the operation of the Ocos Railroad Company from 1900 to 1910, and have not, according to affiant’s knowledge, accounted to the stockholders of said railroad company; that on October 15, 1910, the contemplated defendants, in the name of Schwartz Brothers, sold said railroad to the Guatemala Central Railroad Company; that for the purpose of the contemplated suit it is necessary to ascertain what price was received by said Schwartz Brothers for said railroad; that the Pacific Improvement Company had a controlling interest in the Guatemala Central Railroad Company; that the books of the Pacific Improvement Company indicate what price was paid for the Ocos Railroad and that affiant has no other means of ascertaining the price so paid except by inspection of said books and that said Frank L. Jackson is an officer of the Pacific Improvement Company residing in San Francisco.

When the letters rogatory and accompanying affidavits were presented to the respondent judge an order was made directing that a subpoena issue commanding said Jackson to appear before a designated notary public on November 17, 1929, a°t 10 o’clock A. M., then and there to give his deposition in accordance with said letters rogatory. Thereafter a motion was made on behalf of the witness to set aside the order and to quash said subpoena on the ground that the respondent court had no jurisdiction to make the order, and that if the court had jurisdiction it should, in its discretion, deny it. In support of the motion an affidavit of Jean Wohlwind was filed wherein it was averred that neither of the contemplated defendants resided, was doing business, or had property in the republic of Gautemala; that there is pending in the District Court of the United States, in and for the Northern District of California, a suit by and on behalf of the stockholders of the Ocos Railroad Company for the identical purpose for which the contemplated suit in Guatemala is intended to be prosecuted, and that the purpose of the proposed deposition is in aid of the prosecution of the action in the United States court. A counter-affidavit of Ricardo Kiobge was filed in which it was averred, on the information and belief of the affiant, that Stahl owned real and personal property in Guatemala and that the American Finance and Commerce Company has been and is now doing business in that republic. There is also an averment in the counter-affidavit that there is pending in the Superior Court in and for the City and County of San Francisco an action on behalf of the stockholders of the Ocos Railroad Company against Stahl arising out of his relationship as a receiver of the Ocos Railroad Company and his handling of the funds of that corporation. The motion to quash was presented to the court, argued and finally submitted for decision on November 20, 1929. At all times prior to December 2, 1929, the document designated as letters rogatory was entirely in the Spanish language with no accompanying English translation. All other documents were in English. On December 2d the petitioner filed with the clerk of said court an English translation of the letters rogatory. On December 31, 1929, the court granted the motion to quash the subpoena, and the present proceeding was commenced on January 24, 1930.

Assuming, as respondents contend, that section 24 of article IV of the Constitution, providing that judicial proceedings shall be in no other than the English language, is applicable to a proceeding to take a deposition under sections 2036a and 2083 et seq. of the Code of Civil Procedure, nevertheless the position of the respondents is not advantaged thereby, because of the state of the record, which discloses that at the time of the commencement of this proceeding and of the issuance and service of the alternative writ herein and for some twenty days or more prior thereto there had been on file with the respondent court an English translation of the Spanish letters rogatory and the English translation is attached to the petition herein.

It is the general rule that the facts as they exist at the time the application for the writ of mandamus is made determine the right of the petitioner and the duty of the respondent. (United States ex rel. International Contracting Co. v. Lamont, 155 U. S. 303, 308 [ 39 L. Ed. 160 , 15 Sup. Ct. Rep. 97] ; Ward v. Flood, 48 Cal. 36 [ 17 Am. Rep. 405 ]; 38 C. J., p. 602.)

It is insisted that the letters rogatory were not properly authenticated. It appears that the affidavit of the petitioner attached to the letters was verified before the consul-general of the United States at Guatemala and these documents were transmitted to the respondent court by the consul-general of Guatemala located at San Francisco by a communication which recited that they were so transmitted pursuant to instructions of the Guatemalan minister at Washington, D. C. The letters rogatory, the accompanying affidavit, and the letters of transmittal were original documents and their genuineness was not denied in the answer to the petition herein. In addition there is much force in the contention of the petitioner that the original documents prove themselves. (See Wickersham v. Johnston, 104 Cal. 407, 413 [ 43 Am. St. Rep. 118 , 38 Pac. 89 ].)

It is also contended that the petition for the issuance of the subpoena does not state “a general outline of the facts expected to be proved”, as required by subdivision 3 of section 2084 of the Code of Civil Procedure. We think the affidavit of the petitioner, the substance of which has been hereinbefore related, is a complete answer to this contention.

The pendency of the actions in the state and federal courts in California involving the same issues, the adjudication of which is contemplated in the Guatemalan courts, lends strong support to the contention of counsel for the respondents that the proffered deposition of Jackson is but a “fishing expedition”, and that the respondent court would be justified in refusing the subpoena if any discretion is reposed in the court so to do. However, we feel impelled to adhere to the rule that where, as here, the right to the subpoena is a statutory right, the motive of the party is immaterial and the court was without discretion to deny the same. (Hobbs v. Tom Reed Gold Min. Co., 164 Cal. 497, 502 [43 L. R. A. (N. S.) 1112, 129 Pac. 781 ]; San Francisco Gas & Elec. Co. v. Superior Court, 155 Cal. 30, 39 [17 Ann. Cas. 933, 99 Pac. 359 ]; Johnson v. Langdon, 135 Cal. 624, 626 [ 87 Am. St. Rep. 156 , 67 Pac. 1050 ]; Poor v. Yarnell, 28 Cal. App. 714 [ 153 Pac. 976 ].)

No other points require discussion.

Let the peremptory writ issue as prayed.