Belding-Corticelli Limited v. Kaufman, M-592.

• Decision Date: 09 May 1935
• Docket Number: No. M-592.,M-592.
• Parties: BELDING-CORTICELLI LIMITED et al. v. KAUFMAN.
• Court: U.S. District Court — Western District of Pennsylvania

10 F. Supp. 991

BELDING-CORTICELLI LIMITED et al. v. KAUFMAN.

No. M-592.

District Court, E. D. Pennsylvania.

May 9, 1935.

Henry N. Paul, of Philadelphia, Pa., for plaintiff.

Wesley H. Caldwell, of Philadelphia, Pa., for witnesses.

DICKINSON, District Judge.

Ignoring the distinction among letters rogatory, commissions dedimus potestatem, and other methods of taking testimony by deposition in advance of a trial in open court, we start with the admitted proposition that a court may, in the absence of legislative enactment, enforce the taking of such testimony. When the deposition is taken within the territorial jurisdiction of the court, it may and usually is taken under a mere rule, and the attendance of the witness is compelled by the issuance of the ordinary subpœna process from the court. When, however, the witness is beyond the territorial jurisdiction of the court in which the cause is pending, it may authorize the taking of a deposition and make it evidentiary, but it has no power to compel the attendance of the witness. Something more is needed. Under a law which is recognized, known as the rule of comity, a court which has jurisdiction of the person of the witness whose testimony is taken will, at the instance of the court in which the cause is pending, lend its power to compel the attendance of the witness by issuing its subpœna process. This the one served must obey as he must obey any process issued by a court which has jurisdiction of his person. What in practical effect is done is that the foreign court functions outside of its own jurisdiction by borrowing the judicial robes of the court of the domicile of the witness. All which the latter court does, however, is to lend its process so as to compel the witness to attend and to testify. It has no concern with questions which may arise affecting the competency of the witness to testify in the pending cause, the admissibility in evidence of his testimony, or kindred questions. The witness, however, is under the protection of the court and the laws under which he lives. The court is under the duty of protecting the witness in all his rights. This much is clear enough.

Another admitted proposition is that although the court has the above-outlined powers in the absence of legislation, the Legislature may regulate the exercise of these powers and the powers are thereafter correspondingly curtailed.

This court by one of its members exercised the power of issuing its subpœna to one or more witnesses who...