5.  Testimony  required  on  motion,  or  other  matter  oral  examin-
ation not  required.
6.  Witness  only  one  who  can  establish  fact ;  deposition  cannot

be  used  if  attendance  witness  can  be  procured  at  trial.   C.C.P.
2020,  2021,  2004;  7  Stand.  Proc.  186;  13  Cyc.  832.
Commission  may  issue  and  deposition  taken  pending  appeal.
155  Cal.  30.
364.     Such  depositions  are  obtained  by  following  proceedings :
I.     If  witness  is  in  this  State —

1.  Serve   notice   on   adverse   party   time   and   place   taking   and
name  officer.     153  Cal.  190.
2.  Serve  with  notice,  affidavit  showing  proper  case.
(a)  Five  days  before  time  fixed  plus  one  day  for  each  25
miles  to  travel.
(b)  Court  may  shorten  time — copy  order  served  with  no-
tice.
3.  Procure  subpoena  from  Court  County  where  witness  resides
and  serve.
(a)  Obtained  by  order  Court,  on  exparte  application.
(b)  Clerk  issues  on  the  order.  8  Cal.  App.  12;  C.C.P.  1986.
4.  At  time  fixed  witness  examined  orally  by  both  parties  same

as  in  Court.
(a)  Questions  and  answers  written  out  and  signed  by  wit-
ness.
(b)  Officer  taking  certifies,  seals  and  returns  to  Clerk  of
Court.     151  Cal.  83.
II.     If  witness  is  without  the  State—

1.  Make  motion  on  notice  for  order  to  issue  commission.
2.  Serve  with  it  affidavit  showing  proper  case  to  take  deposi-
tion.
3.  Also  serve  with  it  direct  interrogatories  or  notice  to  take  on
oral  interrogatories.
4.  At  hearing  adverse  party  serve  cross-interrogatories,  or  no-
tice to  take  orally.
5.  Order  made  and  entered  directing  issue  commission.
6.  Clerk  issues  commission   to  person  who  is   to  take  deposi-
tion.    23  Cal.  App.  14.
(a)  Attached  to  it  are  interrogatories ;  or

(b)  Notices  to  take  orally.
