Sibbach v. Wilson & Co.

• Decision Date: 13 December 1939
• Docket Number: No. 7048.,7048.
• Citation: 108 F.2d 415
• Parties: SIBBACH v. WILSON & CO., Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

108 F.2d 415 (1939)

SIBBACH v. WILSON & CO., Inc.

No. 7048.

Circuit 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 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 the 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 Courts, "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 the Seventh Amendment to the Constitution and, that such rules "shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session."

The rules of civil procedure therefore were promulgated and given effect by reason of the authority contained in this Enabling Act. We do not understand any question is raised regarding the power of the Supreme Court to adopt rules consistent with this Act — in fact, it could not be disputed in view of the decisions of the Supreme Court approving the authority conferred by similar legislation. Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253; Beers v. Haughton, 9 Pet. 329, 34 U.S. 329, 359, 9 L.Ed. 145. It is argued here, however, the rule in question permits the invasion of a substantive right contrary to the language of the Enabling Act "nor modify the substantive rights of any litigant."

Plaintiff relies strongly — in fact, almost entirely upon the cases of Union Pacific R. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734, and Camden & Suburban R. Co. v. Stetson, 177 U.S. 172, 20 S.Ct. 617, 44 L.Ed. 721, in support of her position that the court was without the power to enter the order complained of. Undoubtedly, these authorities sustain her position provided the law has not been changed by the rule under attack. If the rule is valid, it follows that the holdings in these cases must be abandoned.

We therefore return to the question as to whether the Supreme Court was empowered by Congress to adopt the rule in question, and whether it was so empowered involves a determination of whether the rule permits an invasion of a substantive right as that term was used by Congress in the Enabling Act. In making such determination, it seems material to refer briefly to the procedure both prior and subsequent to the adoption of the rules by the Supreme Court. After the enactment of the Enabling Act, the Supreme Court appointed an Advisory Committee (302 U.S. 783) to assist it in the preparation of such rules. This committee consisted of many distinguished members of the bar, including a number of professors and deans of law schools of leading universities. The committee devoted about two and one-half years to the tasks assigned them. Tentative drafts were prepared and submitted to the judges...