Pullman Co. v. Jordan

• Citation: 218 F. 573
• Decision Date: 09 November 1914
• Docket Number: 2710.
• Parties: PULLMAN CO. v. JORDAN.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F. 573

PULLMAN CO. v. JORDAN.

No. 2710.

United States Court of Appeals, Fifth Circuit.

November 9, 1914

Forney Johnston, of Birmingham, Ala., for plaintiff in error.

S. L Sinnott, of Birmingham, Ala., for defendant in error.

Before WALKER, Circuit Judge, and SHEPPARD and CALL, District Judges.

WALKER Circuit Judge.

The plaintiff below (defendant in error here), in the proceedings adopted for securing the testimony of Dr. John A. Lenfestey elected, as under the statute he had the right to do, to follow the mode prescribed by the laws of Alabama, the state in which the court was held. 3 Fed.Stat.Anno. 22; 27 Stat.L 7. Having so elected, it was incumbent upon him to proceed in conformity with the requirements of the state law as to the mode of procuring the DEPOSITION. R.S.U.S. Sec. 914, 3 Fed.Stat.Anno. 10 (Comp. St. 1913, Sec. 1537). The Alabama statute, which was undertaken to be followed in taking the deposition of the witness on written interrogatories contains the following provisions, which are made applicable when the opposing party has not taken the steps required to have the deposition taken orally:

'If the party, at the time of filing cross-interrogatories, demands notice of the time and place of taking the deposition, it shall be the duty of the commissioner, or the attorney for the party taking the deposition, to give such party, or his attorney, such notice of the time and place of the taking of the deposition as will enable him to be present, if he so desires. On failure to give notice herein required of the residence of the witness and the commissioner, unless the same be waived by the adverse party, the deposition of such witness must be suppressed at the cost of the party taking it. Provided, however, that no such oral examination shall be had in cases involving less than five thousand dollars, or in cases involving the title to land or specific personal property; and provided, further, that in all cases in which testimony is to be taken by interrogatories, the party against whom the testimony is proposed to be taken shall within the time allowed to file cross-interrogatories have the right to demand reasonable notice of the time and place of taking the testimony and to attend such examination and cross-examine the witness or witnesses orally. And, in the event of such oral cross-examination the other party to the cause may, at the same time and place, on the conclusion of such oral cross-examination, examine the witness orally in rebuttal. ' Code of Alabama 1907, Sec. 4032, as amended; General Acts of Alabama, 1911, pp. 487, 489.

The defendant below, on September 27, 1913, filed with the cross-interrogatories propounded by him to the witness mentioned a written demand:

'That notice of the time and place of taking the deposition of Dr. John A. Lenfestey, in accordance with the interrogatories propounded to said witness by the plaintiff and cross-interrogatories attached hereto and propounded by defendant to said witness, be given the defendant's attorney, in order that defendant's attorney or attorneys may be present at the taking of such deposition, if they so desire, and cross-examine the said witness, if they desire to do so.' On the same day the plaintiff's counsel in Birmingham gave notice to the defendant's counsel in Birmingham that the deposition of the witness Lenfestey would be taken at a specified place in Mt. Clemens, Mich., at 3 p.m. on September 30, 1913. The deposition was not taken at the time and place stated in this notice. The return of the commissioner named to take the deposition was dated November 7, 1913, and was as follows (omitting the commissioner's signature and his statement of the fees of himself and the witness):

'The undersigned commissioner, in said commission named, hereby certifies that I am personally acquainted with the said witness, Dr. John A. Lenfestey, and know him to be the identical person named in said commission; that he was sworn and examined as above stated, and that his evidence was taken down as near as might be in his own language, and was subscribed by him in my presence, on this seventh day of November, A.D. 1913, at the city of Mount Clemens, Macomb county, Michigan, and that I am not of counsel or of kin to said witness or any of the parties to the said cause, or in any manner interested in the result thereof.'

Under the Alabama statute governing the certificate or return to be made by the commissioner, the time and place of taking the deposition must be shown. Code of Alabama 1907, Sec. 4040; Thrasher v. Ingram, 32 Ala. 645. There is an additional reason for enforcing a compliance with this requirement when the party against whom the deposition is proposed to be used has exercised the statutory right of requiring notice to be given him of the time and place of taking the deposition. Birmingham Union Railway Co. v. Alexander, 93 Ala. 133, 9 So. 525. The making of such a demand has the effect of putting a limitation upon the authority of the commissioner to take the deposition. When that statutory right has been exercised, the commissioner's certificate or return does not show that the deposition was taken under the authority conferred upon him, when it fails to show that it was taken at the time and place stated in the notice given.

When the case was called for trial, and before either ...