Norris v. Hassler

• Decision Date: 12 March 1885
• Citation: 23 F. 581
• Parties: NORRIS and others v. HASSLER.
• Court: U.S. District Court — District of New Jersey

23 F. 581

NORRIS and others v. HASSLER.

United States Circuit Court, D. New Jersey.

March 12, 1885

NIXON J.

Under section 725 of the Revised Statutes, power is conferred upon the courts of the United States to punish for contempts of their authority by fine and imprisonment. The proviso of the section includes within the penalty 'disobedience or resistance by any * * * witness to any lawful writ, process order, rule, decree, or command of the said courts. ' This authority is exercised by the courts for two purposes (1) To punish the offender for the disrespect to the court and (2) to compel his performance of some act or duty required of him by the court which he refuses to perform. See In re Chiles, 22 Wall. 168.

Upon affidavits filed, making a prima facie case, a rule has been issued in the above cause, and served upon the defendant requiring him to show cause before the court why he should not be adjudged to be guilty of contempt in not obeying a subpoena duces tecum, duly served, to appear before the examiner in Elizabeth on the twenty-fourth of January last. At the hearing two reasons were relied on by the defendant why the rule should not be made absolute: (1) Because the defendant was necessarily absent in New York on the day on which the subpoena required his attendance here; (2) because the subpoena was not legally served.

1. The proofs do not show a necessary and unavoidable absence, but one voluntarily assented to by the defendant as a pretext and excuse for not obeying the writ. It is true that he was engaged as a party and witness before a referee in the city of New York on the day of the return of the subpoena requiring his attendance at Elizabeth; but all the evidence contradicts the allegation that he was necessarily there. If he had manifested the slightest desire to obey the writ, the hearing in New York could have been arranged by him so that obedience would have been not only possible, but easy.

2. Two grounds were assigned why there was no legal service of the subpoena. The first is that the full amount of witness fees was not paid. The counsel for the complainants testifies that before the subpoena was served upon the defendant he examined the New Jersey Atlas, prepared by Beers, Comstock & Kline, and measured the distance from Elizabeth to Jersey City, and from Jersey City to Englewood, the residence of the defendant, and ascertained that the distance from Elizabeth to Jersey City was 12 miles, and from Jersey City to Englewood 13 miles. He then handed to the witness the sum of $4,-- $1.50 for fees and $2.50 for mileage, being 10 cents per mile for going and returning the 25 miles. But there seems to be a distance of about one mile between the two railroad stations at Jersey City which the sum paid did not cover.

Several suggestions might be made in reply: (1) The shortage in the payment of mileage was so small that the maxim 'de minimis non curat lex' is fairly applicable. (b) The defendant accepted and receipted for the $4...