Ex parte Fisk, Petitioner. 1

CourtUnited States Supreme Court
Writing for the CourtMiller
Citation113 U.S. 713,28 L.Ed. 1117,5 S.Ct. 724
Decision Date02 March 1885
PartiesEx parte FISK, Petitioner. 1

113 U.S. 713
5 S.Ct. 724
28 L.Ed. 1117
Ex parte FISK, Petitioner.1
March 2, 1885.

Page 714

This is an application on the part of Clinton B. Fisk for a writ of habeas corpus, to be directed to the marshal of the Southern district of New York, in whose custody the petitioner is held under an order of the circuit court for that district. The history of the case which resulted in this order, so far as it is necessary to the decision of the matter before us, may be briefly stated as follows: Francis B. Fogg brought suit in the supreme court of the state of New York against Fisk to recover the sum of $63,250, on the allegation of false and fraudulent representations made by Fisk in the sale of certain mining stocks. In the progress of the suit, and before the trial, the plaintiff obtained from the court the following order: 'Ordered, that the defendant, Clinton B. Fisk, be examined and his testimony and deposition taken as a party before trial, pursuant to sections 870, 871, 872, 873, etc., of the Code of Civil Procedure, and that for such purpose he personally be and attend before the undersigned, a justice of this court, at the chambers thereof, to be held in the new county court-house, in the said city of New York, on the thirty-first day of January, 1883, at 11 o'clock in the forenoon of that day.' A motion to vacate this order was overruled, and the judgment finally affirmed by the court of appeals. Thereupon the defendant appeared before the court and submitted to a partial examination, answering some questions and objecting to others, until, pending one of the adjournments of the examination, he procured an order removing the case to the circuit court of the United States. In that court an order was made to continue the examination before a master, to whom the matter was referred. The de-

Page 715

fendant refusing to be sworn and declining to be examined, he was brought before the circuit court on an application for attachment for a contempt in refusing to obey the order.

Without disposing of this motion, the circuit court made another order, to-wit: 'It is hereby ordered and adjudged that the motion to punish the said defendant for such contempt stand adjourned to the next motion day of this court, to-wit, on the twenty-eighth day of March, 1884. It is further ordered that the defendant Clinton B. Fisk, be, and he is hereby, directed and required to attend personally on the fourteenth day of March, 1884, before the Honorable ADDISON BROWN, one of the judges of this court, at a stated term thereof, at his chambers in the post-office building, in said city of New York, at eleven o'clock in the forenoon of that day; then and there, and on such other days as may be designated, to be examined, and his testimony and deposition taken, and continued as a party before trial, pursuant to section 870 et seq. of the Code of Civil Procedure, and for the purposes mentioned in said order of January 12, 1883, and February 12, 1884, heretofore made in this action.' The defendant appeared before the court in pursuance of this order, and, stating that he was advised by counsel that the court had no jurisdiction to require him to answer in this manner to the questions propounded to him by the counsel for plaintiff, he refused to do so. For this, on further proceeding, he was held by the court to be in contempt, and fined $500, and committed to the custody of the marshal until it was paid. It is to be relieved of this imprisonment that he prays here the writ of habeas corpus.

Wheeler H. Peckham, for petitioner.

John R. Dos Passos, for respondent.

[Argument of Counsel from pages 715-718 intentionally omitted]

Page 718

Mr. Justice Miller delivered the opinion of the court. He stated the facts as above recited, and continued:

The jurisdiction of this court is always challenged in cases of this general character, and often successfully. There can be no doubt of the proposition that the exercise of the power of punishment for contempt of their orders by courts of general jurisdiction is not subject to review by writ of error, or appeal to this court. Nor is there, in the system of federal jurisprudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoning power. This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors. When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void. It is well settled now, in the jurisprudence of this court, that when the proceeding for contempt in such a case results in imprisonment, this court will, by its writ of habeas corpus, discharge the prisoner. It follows, necessarily, that on a suggestion by the prisoner that, for the reason mentioned, the order under which he is held is void, this court will, in the language of the statute, make 'inquiry into the cause of the restraint of liberty.' Section 752, Rev. St.

That the case as made by the petitioner comes, for the purposes of this inquiry, within the jurisdiction of this court, under the principles above mentioned, is established by the analogous

Page 719

cases. Ex parte Rowland, 104 U. S. 604; Ex parte Lange, 18 Wall. 163. But did the court transcend its jurisdiction in fining the petitioner for contempt? Or, rather, did it have the power to make the order requiring him to submit to the preliminary examination? For, if it had that power, it clearly could enforce obedience to the order by fine and imprisonment if necessary. The record of the entire proceeding in this branch of the case, both in the state court and the circuit court, is before us, and we are thus enabled to form an intelligent opinion on the question presented.

The power of the court to continue the examination of the defendant, after the removal of the case into the court of the United States, is asserted on two grounds: (1) That the order for his examination, having been made by the supreme court of New York, under its rightful jurisdiction, while the case was pending in it, is still a valid order, partially executed, which accompanies the case into the circuit court, and that in that court it cannot be reconsidered, but must be enforced. (2) That if this be not a sound proposition, the circuit court made an independent order of its own for the examination of the defendant, which order is justified by the principle that the Code of Civil Procedure of New York, under which both orders were made, is a part of the law governing the courts of the United States sitting within that state.

We will inquire into the latter proposition first, for the points to be considered in it lie at the foundation of the other also. The general doctrine that remedies, whose foundations are statutes of the state, are binding upon the courts of the United States within its limits, is undoubted. This well-known rule of the federal courts, founded on the act of 1789, (1 St. 92; Rev. St. § 721,) that the laws of the several states, except when the constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision...

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212 practice notes
  • Maseda v. Honda Motor Co., Ltd., Nos. 87-5866
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 19, 1988
    ...prior to removal. Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 437, 94 S.Ct. 1113, 1123, 39 L.Ed.2d 435 (1974); Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117 (1885); 28 U.S.C. Sec. 1450. Additionally, a state court judgment in a case removed to federal court does not forec......
  • Ex parte Edward Young, No. 10
    • United States
    • United States Supreme Court
    • March 23, 1908
    ...will discharge the person from imprisonment. Ex parte Yarbrough, 110 U. S. 651, 26 L. ed. 274, 4 Sup. Ct. Rep. 152; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Re Ayers, 123 U. S. 443, 485, 31 L. ed. 216, 223, 8 Sup. Ct. Rep. 164. But an examination of the record befo......
  • United States v. Gainey, No. 13
    • United States
    • United States Supreme Court
    • March 1, 1965
    ...facts are enough to convict be implied because of the power of Congress to make procedural rules or rules of evidence. See Ex parte Fisk, 113 U.S. 713, 720, 5 S.Ct. 724, 727, 28 L.Ed. 1117. It is not disputed that Congress has power to prescribe rules governing admissibility of evidence and......
  • U.S. v. Holland, No. 76-3763
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 23, 1977
    ...Accordingly, appellant cannot be punished for violating the order. The situation here is like that in the old case of Ex parte Fisk, 113 U.S. 713 at 718 and 726, 5 S.Ct. 724 at 726 and 730, 28 L.Ed. 1117 (1885) where the Supreme Court "When, however, a court of the United States undertakes,......
  • Request a trial to view additional results
212 cases
  • Maseda v. Honda Motor Co., Ltd., Nos. 87-5866
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 19, 1988
    ...prior to removal. Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 437, 94 S.Ct. 1113, 1123, 39 L.Ed.2d 435 (1974); Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117 (1885); 28 U.S.C. Sec. 1450. Additionally, a state court judgment in a case removed to federal court does not forec......
  • Ex parte Edward Young, No. 10
    • United States
    • United States Supreme Court
    • March 23, 1908
    ...will discharge the person from imprisonment. Ex parte Yarbrough, 110 U. S. 651, 26 L. ed. 274, 4 Sup. Ct. Rep. 152; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Re Ayers, 123 U. S. 443, 485, 31 L. ed. 216, 223, 8 Sup. Ct. Rep. 164. But an examination of the record befo......
  • United States v. Gainey, No. 13
    • United States
    • United States Supreme Court
    • March 1, 1965
    ...facts are enough to convict be implied because of the power of Congress to make procedural rules or rules of evidence. See Ex parte Fisk, 113 U.S. 713, 720, 5 S.Ct. 724, 727, 28 L.Ed. 1117. It is not disputed that Congress has power to prescribe rules governing admissibility of evidence and......
  • U.S. v. Holland, No. 76-3763
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 23, 1977
    ...Accordingly, appellant cannot be punished for violating the order. The situation here is like that in the old case of Ex parte Fisk, 113 U.S. 713 at 718 and 726, 5 S.Ct. 724 at 726 and 730, 28 L.Ed. 1117 (1885) where the Supreme Court "When, however, a court of the United States undertakes,......
  • Request a trial to view additional results

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