First Nat. Bank of Chicago v. Graham

• Decision Date: 04 January 1900
• Citation: 175 Mass. 179,55 N.E. 991
• Parties: FIRST NAT. BANK OF CHICAGO et al. v. GRAHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 179

55 N.E. 991

FIRST NAT. BANK OF CHICAGO et al. v. GRAHAM.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1900

COUNSEL

S. L. Whipple and H. W. Ogden, for plaintiffs.

R. M. Morse and J. Duff, for defendant.

OPINION

LATHROP, J.

We see no ground for holding that the superior court had jurisdiction of the petition which has been brought by appeal to this court. Pub. St. c. 169, has no application. Whether a commissioner appointed by another state to take a deposition of a witness in this commonwealth can be considered a 'tribunal,' within the meaning of that word in St. 1883, c. 195, it is unnecessary to consider; for, if he is such a tribunal, the application must be made by the tribunal to a justice of the court, and not by the petitioners. So, under St. 1898, c. 374, the application must be made by the 'magistrate or tribunal.' The matter having been thus provided for by statute, we are of opinion that the remedy given is exclusive in a case of this kind, where it is sought to take a deposition here under a commission issued by a court in another state. The commissioner in such a case is an officer of the court issuing the commission, and, if he neglects to perform his duty, the remedy is for the court where the action is pending to appoint another commissioner. The petitioners contend that the petition may be treated as a bill for discovery, but the entire framework of the bill shows that it is not a bill for discovery, but an application to compel a witness not a party to the proceeding in Illinois to answer interrogatories under a commission issued in that proceeding by a court in Illinois. The result is that the decree of the superior court must be reversed, and the petition dismissed. So ordered.