Jennings v. Menaugh

• Decision Date: 15 November 1902
• Docket Number: 9,952.
• Citation: 118 F. 612
• Parties: JENNINGS v. MENAUGH et al.
• Court: United States Circuit Court, District of Indiana

118 F. 612

JENNINGS v. MENAUGH et al.

No. 9,952.

United States Circuit Court, D. Indiana.

November 15, 1902

William V. Rooker, for plaintiff.

Asa Elliott, S. H. Mitchell, and C. C. Hadley, for defendants.

BAKER District Judge.

The plaintiff has moved the court to suppress the depositions of some 30 witnesses of the defendants on the ground that each witness lives within 100 miles of the place of trial. It is shown in support of the motion that each witness lives within less than 100 miles of the place of trial, measured by a direct line. It is shown in opposition thereto, and it was conceded on the hearing of the motion, that each of said witnesses, by the ordinary, usual, and shortest route of public travel, lives at least 140 miles from the place of trial.

Section 863, Rev. St. U.S., in force since September 24, 1789 (U.S Comp. St. 1901, p. 661), provides 'that the testimony of any witness may be taken in any civil cause depending in a district or circuit court of the United States de bene esse when the witness lives at a greater distance from the place of trial than one hundred miles.'

Section 876, Rev. St. U.S. (U.S. Comp. St. 1901, p. 667), in force since March 2, 1793, provides that 'subpoenas for witnesses who are required to attend a court of the United States in any district may run into any other district provided, that in civil cases, the witnesses living out of the district in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same.'

The question for decision is, how is the distance from the place of residence to the place of trial to be measured? By a straight line from the one place to the other, or by the ordinary, usual, and shortest route of public travel? In my opinion, the distance is to be determined by the ordinary, usual, and shortest route of public travel, and not by a mathematically straight line between the place of residence and the place of trial. This was held to be the true rule to be applied in such cases in Ex parte Beebees, 2 Wall.Jr. 127, Fed. Cas. No. 1,220, where Mr. Justice Grier sitting at the circuit, said: 'The court must, of course have regard to the actual distance by the usual routes, and not the imaginary rules assumed for the benefit of mail contractors. ' In Fost. Fed. Prac., on page 638, Sec. 286, the rule is laid down in these words: 'Whether a witness resides more than one...