Flower v. MacGinniss

• Decision Date: 16 December 1901
• Docket Number: 121.
• Citation: 112 F. 377
• Parties: FLOWER v. MacGINNISS et al.
• Court: U.S. Court of Appeals — Second Circuit

112 F. 377

FLOWER v. MacGINNISS et al.

No. 121.

United States Court of Appeals, Second Circuit.

December 16, 1901

John A Garner, for plaintiff in error.

Franklin Bien, for defendant in error.

Before WALLACE, Circuit Judge, and TOWNSEND Judge, and TOWNSEND and ADAMS, District judges.

WALLACE Circuit Judge.

This is a writ of error to review an order committing the plaintiff in error for contempt for refusing to submit to an examination as a witness in an equity cause pending in the United States circuit court for the district of Montana to which he was not a party. The complainant having given notice of the taking of depositions before a commissioner, pursuant to section 863 of the Revised Statutes of the United States obtained a subpoena from the clerk of the United States circuit court for the Southern district of New York, and made service of the same upon the plaintiff in error. The plaintiff in error appeared before the commissioner, pursuant to the subpoena, and refused to submit to an examination upon the ground that issue had not been joined in the equity cause, and consequently the complainant was not entitled to take his testimony. Upon an application to punish him for contempt, although it appeared that issue had not been joined in the equity cause, the court below adjudged him guilty. Concededly, this order was erroneous, unless, by virtue of section 863, the complainant was entitled to take the testimony of the witness notwithstanding issue had not been joined in the cause. The section provides that the testimony of a witness 'may be taken in any civil cause depending in a district or circuit court by deposition de bene esse when the witness lives at a greater distance from the place of trial than one hundred miles,' etc., upon first giving reasonable notice in writing to the opposite party or his attorney, stating the name of the witness and the time and place of the taking of the deposition, and that any person may be compelled to appear and depose in the same manner as witnesses may be compelled to appear and testify in court. The section is a reproduction by the revisers in substance of a similar provision contained in section 30 of the judiciary act of September 24, 1789, with subsequent amendments as to unimportant matters, to which it is not necessary to refer. It is to be read in connection with rules 67 and 68 of the supreme court of the United States, promulgated pursuant to the statutory authority conferred on that tribunal to prescribe and regulate the mode of taking and obtaining evidence in equity and admiralty causes. This power was conferred on the supreme court by congress in 1842, and in that year these rules were promulgated. They cover the whole subject of procedure in taking testimony in equity causes, so far as it is not controlled by statutes, and they have subsequently been amended from time to time, the latest amendments being made in 1891 and 1892. It will be observed that section 863 is silent as to the time when, in a pending cause, the testimony of the witness may be taken. An equity cause is pending the moment a bill has been filed in the office of the clerk of the court, whether or not process has been served on the...