Pullman Co. v. Jordan, 2710.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation218 F. 573
Docket Number2710.
PartiesPULLMAN CO. v. JORDAN.
Decision Date09 November 1914

218 F. 573

PULLMAN CO.
v.
JORDAN.

No. 2710.

United States Court of Appeals, Fifth Circuit.

November 9, 1914


[218 F. 574]

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.' [218 F. 575] 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
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3 practice notes
  • Cogen v. United States, No. 89
    • United States
    • United States Supreme Court
    • January 2, 1929
    ...Grant Bros. Const. Co. v. United States, 232 U. S. 647, 661, 662, 34 S. Ct. 452, 58 L. Ed. 776; Pullman Co. v. Jordan (C. C. A.) 218 F. 573, 577; to compel the production of books or documents, Pennsylvania R. R. Co. v. International Coal Mining Co. (C. C. A.) 156 F. 765; for leave to make ......
  • Apex Hosiery Co. v. Leader, No. 6977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 3, 1939
    ...a deposition, Grant Bros. Const. Co. v. United States, 232 U.S. 647, 661, 662, 34 S.Ct. 452, 58 L.Ed. 776; Pullman Co. v. Jordan (C.C. A.) 218 F. 573, 577; to compel the production of books or documents, Pennsylvania R. Co. v. International Coal Mining Co. 102 F.2d 703 (C.C.A.) 156 F. 765; ......
  • Southern Cotton Oil Co. v. Elliotte, 2480.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 13, 1914
    ...not seem necessary to decide the full nature and extent of the claimant's right to this seed; it is sufficient to say that it was superior [218 F. 573.] to any right vesting in the trustee. The case presents most, if not all, of the features of a purchase by an agent, with the principal's m......
3 cases
  • Cogen v. United States, No. 89
    • United States
    • United States Supreme Court
    • January 2, 1929
    ...Grant Bros. Const. Co. v. United States, 232 U. S. 647, 661, 662, 34 S. Ct. 452, 58 L. Ed. 776; Pullman Co. v. Jordan (C. C. A.) 218 F. 573, 577; to compel the production of books or documents, Pennsylvania R. R. Co. v. International Coal Mining Co. (C. C. A.) 156 F. 765; for leave to make ......
  • Apex Hosiery Co. v. Leader, No. 6977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 3, 1939
    ...a deposition, Grant Bros. Const. Co. v. United States, 232 U.S. 647, 661, 662, 34 S.Ct. 452, 58 L.Ed. 776; Pullman Co. v. Jordan (C.C. A.) 218 F. 573, 577; to compel the production of books or documents, Pennsylvania R. Co. v. International Coal Mining Co. 102 F.2d 703 (C.C.A.) 156 F. 765; ......
  • Southern Cotton Oil Co. v. Elliotte, 2480.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 13, 1914
    ...not seem necessary to decide the full nature and extent of the claimant's right to this seed; it is sufficient to say that it was superior [218 F. 573.] to any right vesting in the trustee. The case presents most, if not all, of the features of a purchase by an agent, with the principal's m......

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