Ex parte Fisk, Petitioner. 1

• Decision Date: 02 March 1885
• Citation: 113 U.S. 713,28 L.Ed. 1117,5 S.Ct. 724
• Parties: Ex parte FISK, Petitioner. 1
• Court: U.S. Supreme Court

113 U.S. 713

5 S.Ct. 724

28 L.Ed. 1117

Ex parte FISK, Petitioner.¹

March 2, 1885.

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- 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] 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 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 in trials at common law, was enlarged in 1872 by the provision found in section 914 of the Revision. This enacts that 'the practice, pleadings, and forms and modes of proceeding in civil cases, other than equity and admiralty causes, in the circuit and district courts, shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, anything in the rules of courts to the contrary notwithstanding.' In addition to this, it has been often decided in this court that in actions at law in the courts of the United States the rules of evidence and the law of evidence generally of the states prevail in those courts. The matter in question here occurred in the court below in regard to a common-law action. It was in regard to a method of procuring and using evidence, and it was a proceeding in a civil cause other than equity or admiralty. We entertain no doubt of the decision of the court of appeals of New York that it was a proceeding authorized by the statutes of New York, under which, in a New York court, defendant was bound to answer. The case, as thus stated, is a strong one for the enforcement of this law in the courts of the United States. Ex parte Boyd, 105 U. S. 647. But the act of 1789, which made the laws of the states rules of decision, made an exception when it was 'otherwise provided by the constitution, treaties, or statutes of the United States.' the act of 1872 evidently contemplates the same exception by requiring the courts to conform to state practice as near as may be. No doubt it would be implied, as to any act of congress adopting state practice in general terms, that it should not be inconsistent with any express statute of the United States on the same subject.

There are numerous acts of congress prescribing modes of procedure in the circuit and district courts of the United States at variance with laws of the states in which the courts are held. Among these are the modes of impaneling jurors, their qualifications, the number of challenges allowed to each party. Two chapters of the Revised Statutes, (17 and 18,) embracing sections 858 to 1042, inclusive, are devoted to the subjects of evidence and procedure alone. The case before us is eminently one of evidence and procedure. The object of the orders is to procure...