108 F.2d 415 (7th Cir. 1939), 7048, Sibbach v. Wilson & Co., Inc.

Docket Nº:7048.
Citation:108 F.2d 415
Party Name:SIBBACH v. WILSON & CO., Inc.
Case Date:December 13, 1939
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 415

108 F.2d 415 (7th Cir. 1939)



WILSON & CO., Inc.

No. 7048.

United States Court of Appeals, Seventh Circuit.

December 13, 1939

Royal W. Irwin, of Chicago, Ill., for appellant.

J. F. Dammann, Kenneth F. Montgomery, and Sidney K. Jackson, all of Chicago, Ill. (Wilson & McIlvaine, of Chicago, Ill., of counsel) for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

The plaintiff was injured in an automobile accident on the 3rd day of September, 1937, in the State of Indiana, and brought suit on November 24, 1937 in the United States District Court for the Northern District of Illinois, to recover damages for personal injuries sustained thereby. On June 6, 1939, the Court ordered plaintiff to submit to a physical examination at a designated physician's office. The plaintiff refused and, upon motion by the defendant, a rule was entered upon the plaintiff to

Page 416

show cause why she should not be adjudged in contempt of court in refusing to obey such order.

The plaintiff answered that the Court was without power to enter such an order either under the Federal law or the law of the State of Illinois.

Upon the hearing, the court, on June 7, 1939, found plaintiff guilty of contempt and ordered that she be committed to the common jail of Cook County until she complied with said order, or until she was otherwise legally discharged. It is from this order the appeal is here.

We are convinced that the ultimate question to be determined is the validity of Rule 35(a) of the Rules of Civil Procedure, effective September 16, 1938, 28 U.S.C.A.following section 723c, by virtue of a proclamation of the Supreme Court. If this rule is valid, it undoubtedly furnishes the authority for the order in question.

Congress, by its enactment of June 19, 1934, 28 U.S.C.A. § 723b, empowered the Supreme Court to prescribe, by general rules, for the District Court, 'the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant. They shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect. ' Section 723c of the Enabling Act preserves the right of trial by jury as at common law, and declared by...

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