Pierce v. Union Pac. Ry. Co.

• Decision Date: 06 October 1891
• Citation: 47 F. 709
• Parties: PIERCE v. UNION PAC. RY. CO.
• Court: U.S. District Court — Southern District of Iowa

47 F. 709

PIERCE v. UNION PAC. RY. CO.

United States Circuit Court, S.D. Iowa, Western Division.

October 6, 1891

Charles A. Clark, for plaintiff.

Wright & Baldwin, for defendant.

Before SHIRAS and WOOLSON, JJ.

SHIRAS J.

This action, being at law, to recover damages caused by the death of Ralph H. Pierce, was brought originally in the district court of Pottawattamie county, Iowa, and was thence removed into this court by the defendant corporation. To the petition as filed in the state court there were attached certain interrogatories, to be answered on behalf of the defendant by the proper officers of the company, the answer to which could, under the provisions of the state statute, have been read in evidence upon the trial of the case, had such trial taken place in the state court.

The plaintiff now moves this court for an order directing the time within which such interrogatories shall be answered, and thus the question is presented, whether, in the federal court, the plaintiff is, of right, entitled to insist upon answers being filed to the interrogatories attached to the petition, in order that the same may be read in evidence upon the trial of the cause. It seems to us that the ruling of the supreme court in Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, is decisive of the motion now presented. The facts in that proceeding, briefly stated, were as follows: Francis B. Fogg brought suit in the supreme court of the state of New York against C. B. Fisk, to recover damages at law, and in the progress of the cause, obtained an order that the defendant Fisk, be examined, and his deposition be taken, as a party before trial, according to the provisions of the New York Code of Civil Procedure. In obedience to this order, Fisk appeared before the court, and his examination had been partly completed, when the cause was removed into the circuit court of the United States, and thereupon in that court a further order was obtained, requiring Fisk to appear according to the provisions of the state statute, in order that his examination should be completed. The defendant appeared before the court in pursuance of the order, but declined to answer the questions propounded to him, on the ground that the court had no jurisdiction to require him to answer the questions in the manner required by the state statute, and thereupon he was adjudged to be in contempt, and was committed to the custody of the marshals. To secure relief from this...