Dancel v. Goodyear Shoe Machinery Co.

• Decision Date: 14 March 1904
• Docket Number: 1,803.
• Citation: 128 F. 753
• Parties: DANCEL et al. v. GOODYEAR SHOE MACHINERY CO.
• Court: U.S. District Court — District of Massachusetts

128 F. 753

DANCEL et al. v. GOODYEAR SHOE MACHINERY CO.

No. 1,803.

United States Circuit Court, D. Massachusetts.

March 14, 1904

Roger Foster, for complainants.

Edwards H. Childs, Elmer P. Howe, and William A. Sargent, for defendant.

COLT Circuit Judge.

This is a petition for an order directing the clerk to issue a subpoena duces tecum under section 863 of the Revised Statutes (U.S. Comp. St. 1901, p. 661). The material part of the petition is as follows:

'I. Your petitioners reside in the county of Kings and state of New York, and they are the complainants in a certain suit in equity against the Goodyear Shoe Machinery Company, of Portland, Maine, otherwise known as the United Shoe Machinery Company, of Portland, Maine,' which is now at issue and pending in the Circuit Court of the United States for the Southern District of New York. The testimony of Elmer P. Howe, who is vice president and a director of said defendant, and of Sidney W. Winslow who is president and a director of said defendant, together with the books and papers described in the prayer of the petition, is and are material and necessary for use in support of the case of the complainants in said suit.

'II. On November 20, 1903, the complainants caused to be duly served on Edwards H. Childs, Esq., solicitor for the defendant in said suit, a notice, in accordance with section 863 of the Revised Statutes of the United States that the testimony of said Howe and of said Winslow, both of whom reside in the state of Massachusetts, would be taken before George Hogg, a notary public, at his office No. 87 Milk street, in the city of Boston, county of Suffolk, and state of Massachusetts, on November 27, 1903, beginning at 10:30 a.m. on that day, and continuing from day to day until completed. The clerk for the Circuit Court for the District of Massachusetts has been requested to issue, sign, and seal a subpoena for said witnesses, but he has refused so to do. * * *

'III. Serious injury and damage will be caused to the complainants herein unless the clerk of the Circuit Court of the United States for the District of Massachusetts issues, signs, and seals such a subpoena, naming as a time for the attendance of said witnesses the day and hour to which said notary adjourns the taking of said deposition. No previous application for an order directing the clerk to issue such a subpoena has been made.

'Wherefore your petitioners pray that an order issue directing the clerk of the Circuit Court of the United States for the District of Massachusetts to issue under the seal of said court and to sign and to attest a subpoena directed to Elmer P. Howe, individually and as vice president of the Goodyear Shoe Machinery Company, of Portland, Maine, and to Sidney W. Winslow, individually and as president of the Goodyear Shoe Machinery Company, of Portland, Maine, which corporation is otherwise known as the 'United Shoe Machinery Company, of Portland, Maine,' directing them and each of them to attend before George Hogg, a notary public, of No. 87 Milk Street, in the city of Boston, county of Suffolk, and state of Massachusetts at such time as may be appointed by said notary, and so on from day to day until their deposition is completed, then and there to be examined de bene esse in pursuance of the Revised Statutes of the United States, and then and there to testify and give evidence on the part of the complainants in a certain cause hereinbefore described, and directing them and each of them to bring with them and produce at the time and place aforesaid all books of account, minutes of meetings of committees, certificates of shares of stock, stock registers, stock ledgers, contracts and copies of the same, letter books, letters, and other papers of the Goodyear Shoe Machinery Company, of Hartford Connecticut, and also all books of account, minutes of meetings of stockholders, minutes of meetings of directors, minutes of meetings of committees, certificates of shares of stock, stock registers, stock ledgers, contracts and copies of the same, letter books, letters, and other papers of the Goodyear Shoe Machinery Company, of Portland, Maine, and also all books and papers of the United Shoe Machinery Company that contain any reference to, and all that name, the Goodyear Shoe Machinery Company, of Hartford, Connecticut, and also all books and papers of the United Shoe Machinery Company that contain any reference to, and all that name, the Goodyear Shoe Machinery Company, of Portland, Maine, and all that name and all that refer to any machine manufactured under letters patent number 459,036, and also all such that refer to such letters patent, and that your petitioner may have such other and further relief in the premises as may be just; and your petitioners will ever pray,' etc.

Attached to the petition is a copy of the pleadings in the case, also the affidavit of counsel that the allegations in the petition are true to his personal knowledge, and that the petition was not sworn to because the petitioners at the time were outside of the county of New York.

The granting of the petition is opposed on several grounds:

(1) The court has no power under section 863 to issue a subpoena duces tecum to compel the production of books and papers.

(2) If the court has the power, it should be exercised with regard to a reasonable protection of the witness, and only upon the preliminary proof required by section 869 of the Revised Statutes (U.S. Comp. St. 1901, p. 665).

(3) The papers on which this application is made are clearly insufficient respecting the requisite preliminary proof.

The first objection is untenable. The power of the court to order a subpoena duces tecum under section 863 has been unquestioned since the decision of Judge Choate in United States v. Tilden, 10 Ben. 566, Fed. Cas. No. 16,522. It has been recognized in this circuit by Judge Lowell in Davis v. Davis, 90 F. 791. The history of the statute is not repugnant to this construction, and its terms are broad enough to cover it. Convenience and necessity call for such a construction if possible. The only danger lies in an abuse of the power by a loose and unrestricted exercise of it.

The second objection presents the question whether a subpoena duces tecum should issue as of course, or only by order of court, upon preliminary proof that the documents are in possession of the witness and appear to be competent and material evidence in the case. Upon this point the position of the petitioners, as stated in the brief of counsel, is as follows:

'Ever since Judge Choate's opinion, 20 years ago, it has been the uniform practice in the federal courts throughout the country, except possibly in Massachusetts, for subpoenas duces tecum to be issued as of course, usually even without application to the court, when depositions were taken de bene esse before a notary in another state under Rev. St. U.S. Sec. 863. Judge Lowell's decision seems to have settled the practice in this circuit; and we submit that it would be unfortunate, tend to mislead litigants and practitioners, and to waste the time of the court by needless motions and applications, if a different rule were to be adopted in this circuit from that followed by other federal courts. Usually the subpoena is not issued even by the clerk in such a case, but is signed and sealed by the notary (Loveland's Federal Forms, No. 23); but since the witnesses have disobeyed that signed and sealed by the notary, as is shown by his certificate, and the clerk has refused to issue one without authority from the court, an order of the court either punishing the witnesses for contempt, or directing an attachment against them, or directing the clerk to issue a subpoena duces tecum, is required.'

It is contended in the first place that, since the witnesses have been served with a subpoena duces tecum issued by the notary public, the court may direct a writ of attachment against them for contempt. As the witnesses, however, have not disobeyed any process of this court, it manifestly has no power to punish them for contempt. Further, a notary public has no authority under section 863 to issue a subpoena. The statute says:

'Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court.'

The natural and reasonable construction of this language is that, if the witness fails to comply with the notice in writing previously mentioned in the statute, he may be compelled to appear and testify in the same manner as witnesses in court may be compelled; that is, by a subpoena issued by the court of the district in which the testimony is taken. This has been the settled construction since United States v. Tilden, where the court said that those words-- 'Refer to the instrumentalities then in force in the common practice of the courts for compelling the attendance and the testimony of witnesses, the writ of subpoena and the power to punish the disobedience to a lawful order as a contempt. This is the practical construction which these words have received.'

It is further contended that it is the universal practice outside of the district of Massachusetts for the clerk of the court to issue a subpoena duces tecum as of course. There is no authority cited which supports this proposition. This will appear from an analysis of the cases upon which the petitioners rely: United States v. Tilden, 10 Ben. 566, Fed. Cas. No. 16,522; Davis v. Davis (C.C.) 90 F. 791; Bischoffsheim v. Brown (C.C.) 29 F. 341; and Edison Electric Light Company v. United States Electric Lighting Company (C.C.) 44 F. 294; Id., 45 F. 55.

In United States v. Tilden, it was decided (1) that the court has power under section...