Uhle v. Burnham

• Decision Date: 31 December 1890
• Citation: 44 F. 729
• Parties: UHLE et al. v. BURNHAM et al.
• Court: U.S. District Court — Southern District of New York

44 F. 729

UHLE et al. v. BURNHAM et al.

United States Circuit Court, S.D. New York.

December 31, 1890

Charles Putzel, for plaintiffs.

Elihu Root, for defendant.

LACOMBE Circuit Judge.

As this case will be on the trial calendar for January 5th, and both sides are solicitous that the motions now under consideration be promptly disposed of, a brief memorandum is all that can be filed with this decision.

(a) The motion and the counter-motion for production on the trial of the books and papers of Jules Arbib & Co. were practically agreed to by both sides upon the argument. An order may be taken requiring both parties to produce, on the trial, all such books and papers which were in their possession, or under their control, at the time of the service of notices of these motions, or which have since come into their possession or under their control.

(b) The motion to suppress depositions. No such motion is made as to the depositions of the witnesses examined in Kansas City, nor as to one of the witnesses (Charles Nechter) examined at Chicago. By not making a timely motion to suppress, the defendants must be deemed to have waived any objections to the manner of taking the testimony of those witnesses. Motion is made, however, as to the other Chicago witness, (Pilotte,) and as to the deposition taken in St. Louis. It appears that on November 24th, plaintiffs' counsel served a notice under section 863, Rev. St. U.S., that he would, on November 29th, proceed to take the depositions of certain witnesses at St. Louis, Mo., and would also, on the same day, proceed to take the depositions of certain other witnesses at Chicago Ill. Under the same section he also gave notice, on November 24th, that he would proceed to take the depositions of carious witnesses at Kansas City, No., on November 28th. On the last-named day the examination of witnesses was begun in Kansas City, and such examination was actually in progress on November 29th; in fact, it was not completed till some time subsequent to December 6th. Motion to suppress the depositions taken at Chicago and St. Louis is now made, upon the ground that, under the circumstances, no such reasonable notice as the statute requires was given. The motion should be granted. The practice pursued was wholly irregular. The method of taking testimony by deposition, allowed by section 863, is a convenient one; and when, for any reason, greater elasticity in conducting an examination than would be possible under a commission with written interrogatories is desired, it is a useful substitute for the latter mode. But it was never intended by the framers of that section that a party might be able to compel his adversary, perhaps at enormous cost, to retain and fully instruct separate counsel in a dozen different cities. Moreover, his personal presence might well be necessary to secure, by suggestions to his counsel, such proper cross-examination as would prevent a failure of justice. Nor could he, in many cases, determine in advance of the direct examination, in which one of a dozen different places his personal attendance might be most required. The party taking such simultaneous depositions would not necessarily experience the same embarrassment, for, by means of carefully prepared written questions, he might safely intrust the examination to clerks or even to the officer taking the deposition. Such a Practice should not be sanctioned by the court; it would be unreasonable, and grossly oppressive. Whoever seeks to avail of the provisions of section 863 must so regulate his notice that the opposite party and his counsel may be able to attend, at the place and...