Davis v. Davis
| Decision Date | 08 December 1898 |
| Citation | 90 F. 791 |
| Parties | DAVIS v. DAVIS. |
| Court | U.S. District Court — District of Massachusetts |
Richard W. Hale, for petitioner.
Hosea M. Knowlton, for R. M. Morse, witness.
The plaintiff brought a suit at law in the circuit court of the United States for the district of Montana. Desiring to examine Mr. Morse, a resident of this district, and to procure the introduction in evidence of certain papers in Mr Morse's possession, he obtained a writ of subpoena duces tecum addressed to Mr. Morse, commanding him to appear before Mr. Fiske, a notary public, in Boston. Mr. Morse appeared duly before the notary, and deposed, but declined to produce the papers called for; which papers, it is admitted, were competent evidence in the suit pending in Montana. This is a proceeding against Mr. Morse for contempt.
The witness contended, first, that no subpoena duces tecum could properly issue against a deponent under the provisions of section 863 of the Revised Statutes, but that, if it be desired to obtain a subpoena duces tecum to a deponent, the applicant therefor must take out a dedimus potestatem under section 866. The contrary has been ruled in an elaborate opinion by Judge Choate in the circuit court for the Southern district of New York (U.S. v. Tilden, Fed. Cas. No. 16,522), and I agree with him. See, also, Lowrey v Kusworm, 66 F. 539. I have had greater difficulty in determining if, under the provisions of section 863, a witness can, under any circumstances, be compelled to appear before a notary outside the district in which the suit is pending. Since the case of Insurance Co. v. Southgate, 5 Pet. 604, a deposition of a witness voluntarily appearing, if taken outside the district, has been admitted and in several cases in the circuit court the right, under section 863, to compel a witness to appear and submit to examination outside the district has been decided or implied without doubt. See Ex parte Judson, 3 Blatchf. 89, Fed. Cas. No. 7,561. I hold, therefore, that the subpoena was properly issued.
The witness refused to produce the papers called for, because he claimed a lien upon them, as having once been counsel for the plaintiff. The plaintiff, while admitting that an attorney has a lien for his services upon papers deposited with him by his client, yet contends that that lien will not justify the attorney's refusal to produce those papers if he be summoned as a witness in any suit. I have been referred to but few cases bearing upon the right of a lawyer claiming a lien to refuse to produce papers for inspection when he has been summoned as a witness; but in Hope v. Liddell, 7 De Gex M. & G. 331,...
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