In re Allis

• Decision Date: 13 December 1890
• Citation: 44 F. 216
• Parties: In re ALLIS.
• Court: U.S. District Court — Eastern District of Wisconsin

44 F. 216

In re ALLIS.

United States Circuit Court, E.D. Wisconsin.

December 13, 1890

Mr Parkinson, for the motion.

Mr Mason, contra.

JENKINS J.

The Consolidated Roller Mill Company filed its bill in equity in the circuit court of the United States for the district of Minnesota against the Wilford & Northway Manufacturing Company, to restrain the alleged infringement by the defendant of letters patent of the United States No. 222,895 issued to William D. Gray for a new and useful improvement in roller grinding mills. After issue joined, the testimony of William W. Allis, a resident of this district, and the secretary of the complainant, was taken by consent at his place of residence, upon oral interrogatories, and before an examiner of this court. Upon the cross-examination of the witness, and under advice and request of counsel for the complainant company, he declined to produce certain documents and to answer a certain question; whereupon the defendant moves for an order compelling the production of the required instruments, and requiring the witness to answer the interrogatory. It is objected, in opposition to the motion that the propriety of the production of the document demanded, and the relevancy of the interrogatory propounded, can only be determined by the court in which the action is depending, and, until so determined, no jurisdiction is lodged with this court to act in the premises. With respect to actions at law, the practice is determined by the statutes. The testimony of a witness by deposition de bene esse may be compelled by the court of the district in which the witness resides, and where the deposition is to be taken. Rev. St. Sec. 863. In such case the court or judge invoked to compel answer determines the materiality of the interrogatory, so far, at least, as involved in the exercise of the power of compulsion. Ex parte Peck, 3 Blatchf. 113; Ex parte Judson, Id. 148. Under a commission with written interrogatories the attendance and testimony of the witness may be compelled by the judge of the court of the district in which the witness resides. Rev. St. Sec. 868. In such case, the interrogatories having been settled and their materiality determined prior to the issuance, and by the court issuing the commission, possibly no occasion arises for a ruling by the judge of the court of the district in which the commission is executed as to their materiality; but I apprehend that, upon application to compel answer, he would have the power to determine as well the sufficiency of the answer, as the privilege of the witness to decline to answer. That is an incident to the power to compel answer, necessary to be exercised to determine the alleged contumacy of the witness.

Under rule 67 in equity, prior to its amendment in 1862, testimony could be taken under commission upon written interrogatories, and, by agreement of parties, upon oral interrogatories. Under the rule as amended, (1 Black, 6,) oral examination, if the party desires it, is the rule; examination by written interrogatories is the exception. The rule provides that--

'The examiner shall note all objections to questions, but shall not have the power of decision thereon; but the court shall have the power to deal with...