in re Martinelli

• Decision Date: 23 October 1914
• Parties: In re MARTINELLI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 58

106 N.E. 557

In re MARTINELLI.

Supreme Judicial Court of Massachusetts, Hampden.

October 23, 1914

COUNSEL

Henry W. Ely and Jos. B. Ely, both of Westfield and Springfield for Contractors' Mut. Liability Ins. Co.

OPINION

RUGG C.J.

The petitioner, as administrator of the estates of two different persons, brings these applications in the superior court praying it to issue letters rogatory for taking the testimony of witnesses in the kingdom of Italy, to be used in the hearings on proceedings brought and pending before the Industrial Accident Board for the recovery of the payments provided by the Workmen's Compensation Act (St. 1911, c 751), for the death of these two decedents.

Letters rogatory as a means of procuring the evidence of witnesses in foreign states are not much in use in this commonwealth. The statutes make ample provision to this end by means of depositions. The power to issue a commission rogatory in order to prevent a failure of justice is inherent in a court. But it always has been recognized that such power can be put forth only in aid of a cause actually pending in the court, which issues the letters. That this must be so is apparent when the nature of the proceeding is considered. It is in form a request to a court of a foreign jurisdiction asking as matter of comity that that court will take the testimony of a witness or witnesses within its jurisdiction and transmit the same to the court making the request, for its aid in the doing of justice as to a cause before it. The matter is not dependent upon statute, but rests upon the international good will toward each other by which courts of civilized countries are actuated. Anonymous, 59 N.Y. 314, 315; State v. Bourne, 21 Or. 218, 27 P. 1048; Nelson v. United States, 1 Pet. C. C. 235, Fed. Cas. No. 10,116; 1 Greenleaf on Evidence, § 321.

It is not averred in the application nor contended in argument that the proceedings before the Industrial Accident Board are pending in the superior court. Manifestly they are not so pending. The machinery of the Workmen's Compensation Act does not contemplate the ascertainment of facts in that court.

It is not within the power of a court, even of general jurisdiction, to issue letters rogatory to obtain testimony to be used before a tribunal over whose procedure and trials it is given no authority until the case itself may be brought before it for review. Therefore, it is not within the authority of the superior court to procure...