The opinion
EDMONDS, J.
I concur in the conclusion that the Superior Court of Alameda County had no jurisdiction to issue the subpoena. However, in my opinion, there is no basis for distinguishing Pollak v. Superior Court, 197 Cal. 389 [ 240 P. 1006 ], and it should be overruled.
In the Poliak case, the court failed to mention the conflict between subdivisions (1) and (3) of section 1986, Code of Civil Procedure, and appears to have been misled by the importance of the territorial issue. But the decisive question was stated as follows: “In the case at bar the witnesses whose *623 testimony is sought to be taken in Napa County reside in San Francisco, at the very place of trial, and are available therein as witnesses at any time. In view of that situation the question arises as to whether or not a party to an action may, in any event, require the attendance of a witness outside of the county in which he resides and wherein the action is pending, for the purpose of giving a deposition, even though the place where such witness is required to attend be less than fifty miles from his place of residence.” (Pp. 392-393.) This is exactly the situation which is presented by the petition of Wemyss.
Poliak was obliged to obey the subpoena issued by the Superior Court of Napa County because, “in view of the broad language of said section 2021 of said code, it would seem that authority is granted to take depositions in any county, irrespective of the place where the witness resides or the place wherein the action is pending, provided only the distance between the place of residence of said witness and the place where his deposition shall be taken be less than fifty miles.” (Pp. 393-394.) This is directly contrary to the determination of the same question in the present case.