LeBer v. United States ex rel Fleming

• Decision Date: 03 May 1909
• Docket Number: 1,556,1,555,1,554.,1,553
• Citation: 170 F. 881
• Parties: LEBER v. UNITED STATES ex rel. FLEMING. PRATT v. SAME (three cases),
• Court: U.S. Court of Appeals — Ninth Circuit

170 F. 881

LEBER v. UNITED STATES ex rel. FLEMING.

PRATT v. SAME (three cases),

Nos. 1,555, 1,553, 1,556, 1,554.

United States Court of Appeals, Ninth Circuit.

May 3, 1909

Campbell Metson, Drew, Oatman & Mackenzie and S.D. Woods, for plaintiffs in error.

Robert T. Devlin, U.S. Atty., and William R. Harr, of Department of Justice (S. D. Woods, of counsel), for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

In a suit commenced in the court below on November 8, 1906, by Robert H. Fleming against R. E. Leber, administrator of the estate of Victor Baubet, deceased, and R. E. Leber defendants, it was alleged in the complaint duly filed that pursuant to certain agreements, conveyances, and leases, the plaintiff on April 14, 1906, became entitled to receive from the defendant R. E. Leber 10 per cent. of the gross output of gold from certain mining premises in Alaska until the sum of $2,500 due to the plaintiff should be fully paid; that the said Leber had collected from the laymen and lessees of the said mining company as royalty for the privilege of working and mining such property large quantities of gold dust of great value, the exact amount of which was unknown to plaintiff; that he had been informed and believed, and accordingly alleged, that the defendant Leber had collected and received gold dust in sufficient quantities and of sufficient value to entitle the plaintiff to the full sum of $2,500 from the defendant; that said sum had not been paid, nor any part thereof, save and except the sum of $953.75, paid him from time to time by the said Leber; that upon information and belief the said Leber, for himself and as administrator of the estate of Victor Baubet, deceased, claimed some interest in and to said gold dust, or the money value thereof alleged to be due to the plaintiff.

The prayer of the complaint was that the defendants and each of them be required to render to the plaintiff an accounting of all their acts and deeds in the premises; to set forth the nature and character of any claim the defendants or either of them had to the 10 per cent. of the gross output of the gold or gold dust taken from said mining claim, and claimed by the plaintiff since the 14th day of April, 1906; that a decree be entered in favor of the plaintiff against the defendant in the sum of $1,546.25, with interest thereon from the time the same was collected by defendants, and costs of suit.

The name of Morton E. Stevens appeared upon the complaint as plaintiff's attorney. Summons was issued on this complaint on November 8, 1906, and on the same day service was made upon the defendant by the deputy United States marshal, together with copies of the complaint; on the same day a subpoena was issued by the clerk of the court requiring the defendant to appear before C. E. Wright, a notary public in and for the district of Alaska, at the office of Morton E. Stevens, in the Fairbanks Building in the town of Fairbanks on November 12th, at the hour of 11 a.m. of that day, to testify as a witness upon behalf of plaintiff in the cause, and be examined under oath, and make then and there depositions as an adverse party in said case and at the instance of plaintiff. The subpoena also required the witness to bring with him, and have then and there for examination and inspection, all of the books, papers, accounts, and other documentary evidence of every nature whatsoever in his possession or under his control relating to the subject-matter in the action, and as required to do so by virtue of the provisions of chapters 61 and 63 of Carter's Alaska Code. This subpoena was served upon the defendant by the deputy United States marshal on November 8, 1906, at Fairbanks, by showing and reading to him the original and handing a copy thereof to the defendant, together with a copy of the original notice of taking depositions attached thereto, and also handing the defendant the sum of $4 for one day's attendance and the sum of 50 cents for mileage. With the subpoena was also served a notice to take the defendant's deposition at the same time and place mentioned in the subpoena. Thereafter and on the same day Leber took the said copies of summons, complaint, notice of taking depositions, and subpoena served upon him in said action to Louis K. Pratt, a practicing attorney, and asked him whether he, the said Leber, was required to appear before the notary public at the time and place designated in the notice and subpoena and be examined by deposition in said action, and thereupon the said Pratt advised the said Leber not to respect the subpoena, and that 'if Mrs. Wright (the notary public) had signed it it would be all right, but don't go near her.'

Thereupon Leber disobeyed the subpoena and did not attend before the notary public, and on the evening of November 12th he left Fairbanks for Valdez, a distance of about 350 miles. On November 24, 1906, Morton E. Stevens, attorney for plaintiff, filed a petition in the District Court of Alaska for a warrant to arrest the defendant R. E. Leber and bring him before the court to answer the charge of a contempt of court. The petition alleged that the defendant Leber on the 12th day of November, 1906, had willingly, maliciously, and contemptuously disobeyed the requirements of the subpoena issued by the clerk of the court commanding the defendant to be and appear before C. E. Wright, a notary public, as required by the terms of the subpoena. To this petition was attached the affidavit of the deputy United States marshal setting forth the service upon the defendant of the original summons, together with a copy of the complaint, and the service of a subpoena issued by the clerk of the court, and the notice to take depositions in said cause. There was also filed the affidavit of C. E. Wright, the notary public, setting forth that neither the defendant nor his attorney or any one for him appeared at the time and place mentioned in the subpoena and the notice to take depositions, or at any other time or at all. There was also filed the affidavit of Robert H. Fleming, the plaintiff in the case, setting forth the proceedings to take the testimony of the defendant Leber, and the failure of the latter to appear before the notary public and give his testimony as required in the subpoena and notice to take his deposition. A warrant was thereupon issued by the court for the arrest of the defendant, with directions to bring him before the court to show cause why he should not be punished for contempt of court for his unlawful and contemptuous disobedience of the mandates of the subpoena issued and served upon him by the warrant of arrest. This warrant was executed by the arrest of the defendant by the deputy United States marshal on November 26, 1907, at Valdez, Alaska, the defendant having left Fairbanks on the evening of November 12, 1906, and being at the time of his arrest on his way to Seattle in the state of Washington.

On November 26, 1906, Louis K. Pratt, appearing as attorney for R. E. Leber, moved the court to quash the petition for a warrant. This motion was denied on November 30, 1906. The attorney for Leber thereupon, on December 3, 1906, moved the court to fix Leber's bail, reciting in the moving paper that in the citation no bail had been fixed, and the defendant was then in custody some 400 miles distant from the court. The court fixed the bail at $2,000, which was given, and order entered that the defendant be discharged from custody. The defendant did not return to Fairbanks until March, 1907. In March, 1907, Judge Gunnison held court in Fairbanks in place of Judge Wickersham, who had been directed by the Attorney General to hold court at Juneau. Judge Gunnison continued to hold court at that place until August, 1907.

In April, 1907, and while Judge Gunnison was holding court at Fairbanks, on motion of the attorney for the relator Robert H. Fleming in the contempt proceedings against R. E. Leber the court set the cause for hearing on April 17, 1907, at which time Louis K. Pratt appeared for Leber and announced that he was not ready for trial, and moved the court that the case be indefinitely postponed. The order was entered by the court upon terms. In October, 1907, after Judge Wickersham had returned and was holding court at Fairbanks, the attorney for the relator moved the court that the contempt proceedings and the original suit of Fleming v. Leber et al. (No. 622) be placed upon the next motion calendar, the attorney for the defendant being present and not objecting thereto. On October 15, 1907, the cause came on for hearing, and the attorney for the defendant moved the court for a jury trial, alleging that the judge of the court was biased and prejudiced against the defendant, and that a fair and impartial trial of the contempt proceedings could not be had before the judge. The demand was denied, and the cause set for trial on October 18, 1907. Before the court convened on October 15, 1907, Louis K. Pratt, the attorney for the defendant, entered the private chambers of Judge Wickersham, closed the door and said to the judge that he did not want him to try the case, and if he did so it would be disagreeable for the court. On October 19, 1907, the attorney for the defendant moved the court for a change of venue or change of judge, alleging in an affidavit filed by him that the Hon. James Wickersham, the judge of the court before whom the action was pending, was so biased and prejudiced against the defendant that he could not have a fair and impartial trial; that the said judge was for that reason disqualified from hearing and determining the same. This motion was also denied. The court thereupon heard the evidence in the contempt proceedings herein and adjudged ...