Coosaw Min. Co. v. Farmers' Min. Co.

• Decision Date: 10 April 1895
• Citation: 67 F. 31
• Parties: COOSAW MIN. CO. v. FARMERS' MIN. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

67 F. 31

COOSAW MIN. CO. v. FARMERS' MIN. CO. et al.

United States Circuit Court, D. South Carolina.

April 10, 1895

Smythe & Lee and McCradys & Bacot, for complainant.

Mitchell & Smith, for defendants.

SIMONTON Circuit Judge.

This case comes up on a question certified by the special master. The complainant filed a bill against the defendants, praying an injunction. An injunction bond was required, and was executed. A temporary injunction having been granted, it was dissolved on 5th April, 1892. Thereupon the defendants prayed that the injunction bond be delivered to their solicitor, so that the same could be put in suit. This prayer was refused the court holding that it was the proper judge of the question whether any damage was sustained, and, if so, its amount. An order was filed directing 'that the defendants produce before the master such evidence of damage as they may claim, with leave to complainants to reply thereto if they be so advised, and that the testimony so taken be reported to the court; that J. E. Hagood be appointed special master in this behalf. ' This order was dated and filed 17th June 1892. The defendants took no action under this order until April 1, 1895. Nor were any steps taken by complainant, who indeed, was only required to reply to evidence of the defendants. A reference having been called at the instance of the defendants for this last-name day, counsel for complainant objected to going on with the reference, as the three months allowed under equity rule 69 had long since expired, and no further time can be allowed without an order of the court. The special master asks instructions as to the validity of this objection. The counsel for complainant now press their objection, and say further that it would be inequitable to indulge the defendants by extending the time for taking testimony. Great stress is laid upon the provisions of rule 69, in which, in the absence of special direction, three months, and no more, are allowed within which all testimony must be taken; and on the cases under that rule,-- Ingle v. Jones, 9 Wall. 486; Fischer v. Hayes, 6 Fed. 76; Wooster v. Clark, 9 Fed. 854; Coon v Abbott, 37 F. 98; Wenham v. Switzer, 48 F. 612; Grant v. Insurance Co., 121 U.S. 115, 7 Sup.Ct. 841. Some stress, more by way of analogy, is laid also on the practice in South Carolina in equity before the adoption of the New York Code. Under that practice all proceedings were out of court in which no action was taken within a year and a day. The precise question is obscure. No case in point can be found. At least, if any case does exist, it has escaped the laborious and careful search of learned counsel, and cannot be found by the court. Can the provisions of rule 69 be extended to the investigation of every matter in which testimony is required during the progress of a cause in equity? It certainly cannot mean that, after a cause is at issue, three months, and no more, are allowed for taking all the testimony which may be needed in it up to the final decree. It must relate primarily to the testimony taken upon the matters put in issue by bill, answer, and replication. The preceding rules show that, after replication filed, the cause shall be 'deemed to all intents and purposes at issue. ' Then comes this rule 69, fixing a limit to the time for taking testimony to be read in evidence at the hearing,-- evidently the hearing of the issue so joined. The most critical examination of the rules cannot discover any reference to testimony taken under any other circumstances, or for any other purpose, than for use at this hearing. The rule is not unusual application, for in rule 67, providing for taking testimony orally before an examiner, provision is made for assignment in turn to each party, within which evidence for the moving party, then for the respondent, and then in reply can be offered in this order. 144 U.S.Append. 689, 12 Sup.Ct. iii. If this rule 69 stood alone, there would be much difficulty in answering the question stated above. There is also rule 74, upon the special subject of references to a master, and a special provision is made therefor. Do these rules relate to the same subject, and must they be construed in pari materia? Under the practice in the English chancery, no testimony was ever taken in open court before the chancellor. Witnesses were examined before one of the masters in chancery. Their testimony, reduced to writing, was read at the hearing. In this country, under the act of 1789 (1 Stat. 88), oral testimony and examination of witnesses in open court was required to be the same in cases in equity as in actions at common law. This provision of the act was modified in some respects by subsequent legislation, but was not finally repealed until the adoption of section 862, Rev. St. U.S., which left the mode of proof in causes in equity and admiralty to such rules as the supreme court had then prescribed or may thereafter prescribe. At that time the supreme court had, by an amendment to rule 67, provided for the appointment of an examiner, and for the taking of oral testimony before him, to be reduced to writing, and submitted to the court. 1 Black, 6. The ruling in Blease v. Garlington, 92 U.S. 1, requires that all testimony upon which the supreme court should pass must be in writing before the court. This clearly indicates a preference for written depositions taken before an examiner, for no provision has been made by law for the reduction into writing of oral testimony taken in open court, although this mode of testimony is not absolutely forbidden. Keeping this in mind, we can see the reason for rule 69. When a cause is at issue,-- which happens frequently during vacation,-- the parties need not wait for any action on the part of the court, but either can go straightway before an examiner, and produce all such testimony as they may desire. This testimony, reduced to writing, is used at the hearing. But, as the rule was intended to expedite the cause, and all directions of the court are absent, provision is made that all testimony under this rule must be in within three months, unless ...