Randall v. Venable

• Decision Date: 01 January 1883
• Citation: 17 F. 162
• Parties: RANDALL v. VENABLE.
• Court: U.S. District Court — Western District of Texas

17 F. 162

RANDALL v. VENABLE.

United States Circuit Court, W.D. Texas.

1883

A. J Evans, for motion.

Walton & Hill, opposed.

TURNER J.

These depositions were taken according to the mode prescribed by the statutes of this state, and the motion is based upon the proposition that such mode of taking is not lawful in the courts of the United States. In opposition to the motion it is contended (1) that section 914 of the Revised Statutes authorizes it; and (2) that section 918 authorizes the several circuit and district courts to make rules, etc., and regulate their own practice as may be necessary or convenient, etc.; and (3) that this court has, by virtue of the power given, adopted the mode prescribed by the state statutes for the taking of depositions in this court. In 1872 there were certain rules adopted and entered of record in this court. Rule No. 1 reads: 'The mode of proceeding prescribed by the laws of Texas, where they do not conflict with the laws of the United States, or a rule of the supreme court of the United States, or of this court, are adopted ' Rule No. 15 'provides commissions to take examination of witnesses and depositions, and all testimony in a cause may be taken in the manner and subject to the regulations, so far as they are applicable, mutatis mutandis prescribed by the laws of Texas. ' I will first consider these rules. It is evident that it was not thought that by rule No. 1 provision had been made for taking depositions. The terms used, however, are: 'Proceedings prescribed by the laws of Texas. ' If this was thought sufficient, then rule No. 15 was unnecessary. What does rule 15 undertake to do? I answer, nothing affirmatively. The depositions must be taken subject to the regulations, and (mutatis mutandis) the necessary changes being made. What regulations, and what are the necessary changes? I answer the provisions of the United States statute, viz., sections 863 and 866. This last section provides that a dedimus potestatem may issue when it becomes necessary to prevent a failure or delay of justice, and the necessity must be made to appear to the court. A commission is not granted to any and all litigants, but it only issues when the necessity is made to appear. This is one necessary change. By the laws of Texas depositions may be taken in any county, even in the county where the suit is pending, without reference to the distance from the place of trial. Will it be said that depositions may be taken to be read in the federal courts, where the witness resides within 100 miles of the place of trial? I think not. This, then, is another necessary change. Others could be suggested, but it is not deemed necessary. The law of congress, section 861, provides that 'the mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided.'

Section 862 provides for the mode of proof in cases of equity and admiralty, and provides that it shall be in accordance with the rules prescribed by the supreme court, except as therein specially provided for.

Then came the exceptions, section 863 and 866, and these are the only exceptions in the statutes. So carefully did congress guard the rights of litigants to have the witnesses before the court and jury; and the value of this mode of eliciting evidence is understood by every practitioner.

It is urged that by virtue of section 918 this court was authorized to make rules, etc., and that under that authority this court has adopted rules Nos. 1 and 15, and that is sufficient for the purpose. Let us see what congress has done by way of conferring power to make rules touching the mode of taking evidence.

In section 917 authority is conferred upon the supreme court to prescribe from time to time the forms of writs and other process, the mode of framing and filing proceedings and pleadings, of taking and obtaining evidence, etc., in suits in equity and admiralty. In this section it will be noticed that the power to prescribe the mode of taking and obtaining evidence is specifically conferred, while in section 918, under which it is claimed the same power was conferred upon the district and circuit courts, all mention of the mode of taking and obtaining evidence is omitted, and this is the distinguishing feature in these two sections so far as granting of power is concerned.

I hold that congress thought it necessary, by specific mention, to grant the supreme court the power touching matters of evidence, and I conclude that congress did not believe the other terms would confer the power. Bearing this in mind, we will now look at the next section, viz., 918. This is the section that, it is contended, confers upon this court authority to make rules Nos. 1 and 15. The reply is, congress withheld the very power contended for; or, in other words, declined to give it, by leaving out of this section the words deemed necessary in the preceding section to confer this power upon the supreme court. We are not to assume that words of a statute are unnecessary; and if necessary to be used in section 917, these same words, or words of the same import, were necessary to confer the same power in section 918. I conclude that congress intended to confer a power upon the supreme court which they purposely withheld from the district and circuit courts. There was no necessity for any rules upon the subject; the law of section 861 had secured a valuable right, with the two exceptions provided for. It is again urged that section 914 gives the right; that this section was enacted in 1872, and was not a part of the law at the time sections 861, 863, and 866 were enacted. True, but since 1872 all the laws have been revised, and we have not the Revision of 1875, containing all those various sections, and they should be construed as one act. This section-- 914-- provides that 'the practice, pleadings, etc., in cases other than in equity and admiralty, shall conform, as near as may be, to the practice, pleadings, etc., of the state courts. ' It is claimed that the word 'practice' is broad enough to include the mode and manner of taking depositions.

If this be so, then another exception has been added to section 861. Unless congress intended by the term 'practice,' as used in the law, to ingraft an additional exception upon section 861, it should not have that interpretation, as the taking of testimony by deposition is in derogation of common right.

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