Fogg v. Fisk

• Citation: 19 F. 235
• Parties: FOGG v. FISK.
• Decision Date: 25 January 1884
• Court: U.S. District Court — Southern District of New York

19 F. 235

FOGG v. FISK.

United States Circuit Court, S.D. New York.

January 25, 1884

John R Dos Passos, for plaintiff.

Miller Peckham & Dixon, for defendant.

WALLACE J.

At the time this suit was removed from the state court by the defendant his examination as a witness was pending under an order of that court, directing him to appear and be examined before the trial as a witness at the instance of the plaintiff. By the Code of Civil Procedure of this state a deposition thus taken may be read in evidence by either party at the trial of the action, and also in any other action brought between the same parties, or between parties claiming under them, or either of them, and has the same effect as though the party were orally examined as a witness upon the trial. Section 883. The plaintiff now moves for leave to proceed with the examination of the defendant pursuant to that order, and the defendant resists the application upon the ground that the examination of a party before the trial as a witness for the adverse party is not permitted by the practice of this court.

It is well settled in this circuit that section 914, Rev. St., for conforming the practice of the federal courts in suits at common law as near as may be to that of the state courts does not apply to the taking of testimony, because the statutes of congress cover the whole subject; and these statutes not only do not provide for the examination of a party as a witness for the adverse party before the trial in actions at law, but do not permit evidence thus obtained to be used upon the trial as a substitute for the oral examination of the witness. Rev. St. Sec. 861; Beardsley v. Littell, 14 Blatchf. 102; U.S. v. Pings, 4 F. 714. If, therefore, this were an action originally brought in this court, the plaintiff should not be permitted to proceed with the examination of the defendant. But the removal act of 1875 carefully saves to both parties the benefit of all proceedings taken in the action prior to its removal from the state court. Section 4 declares that when any suit is removed from a state court to a circuit court of the United States, all injunction orders and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed. By force of this provision the plaintiff is entitled to proceed with the defendant's examination,...