Fisher v. Delehant

• Decision Date: 17 December 1957
• Docket Number: No. 15905.,15905.
• Citation: 250 F.2d 265
• Parties: Thomas H. FISHER, Petitioner, v. The Honorable John W. DELEHANT, Judge of the District Court of the United States for the District of Nebraska, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F.2d 265 (1957)

Thomas H. FISHER, Petitioner, v. The Honorable John W. DELEHANT, Judge of the District Court of the United States for the District of Nebraska, Respondent.

No. 15905.

United States Court of Appeals Eighth Circuit.

December 17, 1957.

Thomas H. Fisher, Chicago, Ill. (Norman Crawford, Chicago, Ill., on the brief), pro se.

Norma VerMaas, Lincoln, Neb., for respondent.

Before WOODROUGH, JOHNSEN, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Thomas H. Fisher has petitioned this court under the All Writs Act, 28 U.S. C.A. § 1651(a), for a writ of mandamus or, in the alternative, for a writ of prohibition or certiorari, to direct the respondent judge to vacate and expunge that part of his order dated August 12, 1957, denying the petitioner (and other creditors) the right to discovery and production of the court files and record in the case filed in the District Court of Lancaster County, Nebraska, entitled "The Denver National Bank v. Penny Poke Ranch, Inc., Marlon Brando and Marlon Brando, Jr."¹

Petitioner and other creditors filed in the reorganization proceedings pending against Black Ranches, Inc., under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., a motion to require Marlon Brando, Marlon Brando, Jr., and the Denver National Bank to produce, and permit petitioners to inspect, copy or photograph numerous documents asserted to be in the possession of the Brandos and the bank. Said motion was filed pursuant to Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A., made applicable to bankruptcy reorganization proceedings by General Order in Bankruptcy No. 37, 11 U.S.C.A. following section 53. The motion for production is very general in form, and on its face makes no showing of good cause for the production of the requested documents. The motion is resisted upon the basis, among others, that it is not supported by sufficient showing of good cause and relevance. The motion is supported by an affidavit of Thomas H. Fisher to the effect that the documents sought are relevant and material to issues pending in the reorganization proceedings. The Brandos and the Denver National Bank had filed large claims against the reorganization trustee. Petitioner and other creditors filed objections to such claims. Petitioner contends that certain depositions taken in an action in the Nebraska State Court brought by the Denver National Bank against the Brandos and others were necessary to establish the defenses asserted against the claims filed in the reorganization proceedings by the bank and the Brandos.

The court made an order directing that the Brandos and the bank produce most of the documents requested by the petitioner, but said order provided in part:

"2. That except as limited in this paragraph hereof, the motion of Roe R. Black and others be granted and sustained, provided however, (a) that, despite the generality of the demands of such motion and of this allowance, nothing herein contained shall be taken, considered or held to require Marlon Brando, Marlon Brando, Jr., and Denver National Bank, or any of them, to produce or permit the moving parties, or any of them, to inspect or copy or photograph any depositions, exhibits, court pleadings, court files or court records in the case filed as Docket 192 Page 182 in the District Court of Lancaster County, Nebraska wherein The Denver National Bank was plaintiff and Penny Poke Ranch, Inc., a corporation, Marlon Brando and Marlon Brando, Jr., were defendants * * *".

It is proviso (a), above quoted, that petitioner insists should be eliminated by appropriate writ, particularly so far as it pertains to the depositions. The court in its order issued upon the discovery motion does not set out the reason for the denial of discovery of the depositions. The respondent in his response states:

"8. Petitioner herein, under the allegations set forth in paragraph number twelve (12) of his said motion herein, has an adequate remedy by application under Nebraska law to the Clerk of the District Court of Lancaster County, Nebraska, to obtain the documents requested, assuming, though not conceding, the validity of the petitioner\'s contention that the said depositions are a part of the records of said court."

In paragraph (12) of the petition before us, petitioner sets out various Nebraska statutes, among them, Revised Statutes, Section 25-1280, requiring public officers, upon demand and payment of fees, to give a certified copy of any public record in their custody. He then states, "All of the original depositions and documentary exhibits above referred to, even though they are in the possession or control of the parties to said action in the District Court of Lancaster County, Nebraska, or their attorneys or agents, are public records of the State of Nebraska." There is doubt whether the bank or the Brandos are in possession of the original depositions. Petitioner in his affidavit states, "* * * the original depositions, with attached exhibits, were not filed with the Clerk of the District Court of Lancaster County, according to a recent statement of said Clerk; that affiant has attempted to ascertain the location of said original depositions, with attached exhibits, by inquiries directed both to the commissioner who took said depositions and to counsel for Denver National Bank, but neither the original depositions nor their location has been disclosed to affiant by either said commissioner or said counsel * * *."

Insofar as the discovery order denied the production of the pleadings, court files, and court records in the State court case, there was clearly no error, as such records were available for inspection to the petitioner in the Clerk's office. Certified copies of any court records also were available upon demand upon paying the transcribing costs. There was accordingly no need for the order for the production of such papers. The situation with reference to the depositions is somewhat different, as the record tends to indicate that the depositions, although taken upon commission, were never filed in the office of the Clerk of the State court.

Under the Nebraska law depositions are taken upon commission issued by the court. Revised Statutes, Section 25-1267.16. The officer commissioned to take the deposition is required to mail it to the Clerk of the issuing court. Revised Statutes, Section 25-1267.26. 16 Am.Jur., Depositions, § 66, p. 727, provides:

"If a deposition has been taken by a commissioner as an officer of the court, the court has power and control over the deposition and may compel the party having it in possession to produce, file, or record it."

16 Am.Jur., Depositions, § 85, p. 734, provides:

"Where the deposition is under the control of the court, the court may compel its transmission or production in the event that it is wrongfully withheld."

In the light of the apparent duty on the part of the commissioner to transmit the depositions to the court appointing him, we can not assume that the commissioner has violated his duty and unlawfully turned over the depositions to the bank or the Brandos, at least in the absence of clear evidence to that effect. We need go no further here than to state that if the court refused to order the production of the depositions upon the basis that they could be obtained through the Nebraska court, such a decision would be within the scope of the court's jurisdiction, and would, if erroneous, be subject to correction upon appeal from final judgment.

We are satisfied that the court, pursuant to Rule 34 of the Federal Rules of Civil Procedure, had jurisdiction to rule upon the petitioner's motion. Any error in the court's ruling upon such a motion would be subject to review upon appeal from final judgment.

It is not the purpose of the All Writs Act that the writ serve as a substitute for an unallowable interlocutory appeal under the factual situation presented by the present record. The scope of the All Writs Act is somewhat broadened...