Stewart v. Townsend

• Decision Date: 21 January 1890
• Citation: 41 F. 121
• Parties: STEWART et al. v. TOWNSEND.
• Court: U.S. Court of Appeals — Fourth Circuit

41 F. 121

STEWART et al. v. TOWNSEND.

United States Circuit Court, D. South Carolina.

January 21, 1890

Buist &amp Buist and John Wingate, for plaintiffs.

Lord &amp Hyde and G. W. McCormack, for defendant.

SIMONTON J.

ON MOTION TO SUPPRESS DEPOSITION.

On 18th December, 1889, the attorneys for plaintiffs gave notice to the defendant's attorneys of their purpose to examine before a notary, at Bangor, Me., certain witnesses residing more than 100 miles from the place of trial, to-wit, at Bangor. The acceptance of service of this notice was given by defendant's attorney on said 18th December.

On 4th January, 1890, a package was received by mail, addressed to the 'Honorable Justice of the Circuit Court, Fourth Circuit, District of South Carolina, Charleston, S.C. U.S.A.' It was sealed with three seals, and had indorsed on it in writing, 'If not called for in ten days, return to Charles D. Crosby, Notary Public, Bangor, Maine,' but nothing else appeared on the package showing that it belonged to any case in this court. Upon its receipt in the daily mail of the court the cover of the package was opened by one of the judges of the court. As soon as the opening of the package disclosed what appeared to be a deposition, it was at once closed, and placed in the custody of the clerk, with notice of its character. The attorneys for plaintiffs and defendant were sent for on the same day, and the state of facts made known to them. The plaintiffs' attorneys on 4th January, 1890, gave a four-days notice in writing to the defendant's attorneys of a motion to open and publish this deposition, and for greater certainty, it is supposed, this notice contained in full the notice on which the deposition was taken. On 8th January, the day on which the motion was fixed for a hearing, the defendant's attorneys, with the plaintiffs' attorneys, entered into this stipulation, in the back of the notice, to open and publish:

'The United States of America. We consent to the publication and opening of the depositions within referred to, without prejudice to any objections to the inclosed deposition other than relating to publication and opening, which is hereby waived.'

Very shortly after this the defendant changed his attorneys. The change was made on the record. Motion is now made to suppress this deposition. There are seven grounds stated: (1) That the said deposition did not remain under seal until opened in court, but was opened out of court, previous to January 8, 1890. Depositions can be opened out of court, on motion of one party, against the objection of the other party. U.S. v. Tilden, 10 Ben. 170. This exception, however, must refer to the opening of the envelope by the judge. (2) That the envelope containing said deposition was not indorsed with the name of the cause in which it was taken. (3) That there was no indorsement upon said envelope of the mailing of the package containing said deposition. It must be supposed that this means the mailing of the package by the notary public in person. The package itself showed that it was mailed, and that it was mailed at the instance of the notary public,-- ' if not called for,' etc. (4) That the package containing said deposition was not properly sealed by said notary public, and there is no signature of the notary across the seals. The three seals, however, bear the notarial stamp of the notary. The first exception was caused by the irregularities complained of in the second, third, and fourth exceptions. Whatever weight they may have been entitled to, (and the first three are grave,) the stipulation signed by the attorneys on each side on 8th January seem to have waived them. That stipulation consents to the opening and publication of the deposition without qualification, except 'without prejudice to any objection to the inclosed deposition;' that is to say, 'We consent to the removal of the inclosing envelope, and the withdrawal of the manuscript within, without prejudice, however, to any objection to the inclosed deposition,'-- that is, the manuscript within. And this is emphasized by adding, 'other than that relating to the publication and opening, which is hereby waived. ' The stipulation is not in the most artistic style, but it means this or nothing: 'We waive all objection to the package. Let it be opened, and its contents published. We do not waive any objection which the depositions, after they are opened and published, disclose. These first four exceptions relate to the package, the outer cover of the deposition, and are waived.'

Let us examine the three others: (5) That in the certificate of the notary public, taking and returning the deposition, there is no statement that the said notary public was not interested in the event of the suit. The certificate of the notary is in these words: 'I also certify that I am not of counsel or attorney for either of the parties to the cause;' and omits the words, 'that I am not interested in the event of the suit. ' In Miller v. Young and Peyton v. Veitch two cases in 2 Cranch, C.C. 53, 123, this is held to be no necessary part of the certificate. In Coal Co. v. Maxwell, 20 F. 187, the...