Page images
PDF
EPUB
[blocks in formation]

Mode of taking deposition. - Equity rule country under a dedimus potestatem, pursuant 67, which authorizes the evidence in a cause to this section, he is entitled to tax as a to be taken orally upon application by either disbursement the fees and mileage of the witparty for an order therefor, is applicable to nesses at the same rate as though they had depositions taken on a commission issued attended upon the trial. Agius v. Perkins under this section, and where such a commis. Co., (1907) 151 Fed. 958. sion is applied for by one party to take the Witnesses living at distance. -An affi. testimony of foreign witnesses, the court has davit that witnesses live more than one hunpower to permit the adverse party to cross dred miles from the place of trial of the examine such witnesses orally. Encyclopædia action, without proof of a well-grounded arBritannica Co. v. Werner Co., (1905) 138 Fed. prehension of a failure or delay of justice, is 461,

insufficient for the issuance of a dedimus un. Sufficiency of allegations in application. - der this section, Magone v. Colorado Smelt. In Zych v. American Car, etc., Co., (1904) 127 ing, etc., Co., (1905) 135 Fed. 846. Fed. 723, an application for a dedimus po Bills to perpetuate testimony. -- The second testatem to take testimony before trial al clause of this section, which provides that leged that the action was to recover damages “any Circuit Court, upon application to it as for the negligent death of plaintiffs' father, a court of equity, may, according to the and that the plaintiffs are nonresidents and usages of chancery, direct depositions to be minors; that the negligence alleged consisted taken in perpetuam rei memoriam if they rein defendant's failure to instruct deceased re- late to any matters that may be cognizable garding the dangers of his employment, he in any court of the United States," is wholly being ignorant and illiterate, etc.; that the separate from the first clause authorizing any only persons who could give information as to federal court, where necessary in order to decedent's death, and the rules and regula prevent a failure or delay of justice in a pendtions under which decedent's business was ing case, to grant a dedimus potestatem, to conducted at the time, are persons in de take depositions according to the common fendant's employ; and that the truth of the usage, and is a recognition and regulation of allegations of plaintiffs' complaint must nec. the general power of the federal court as essarily be established by the testimony of courts of chancery under Const., art 3, sec. 2, defendant's servants; that defendant has re to entertain bills to perpetuate testimony, fused to permit plaintiffs' representative to where the complainant cannot himself bring enter its works and examine the place of the the matter to which the desired testimony accident, and that at the inquest over de relates into present judicial investigation. ceased's remains five eyewitnesses testified, Westinghouse Mach, Co. 1”. Electric Storage two of whom, since the accident, have left the Battery Co., (C. C. A. 1909) 170 Fed, 430. state; that plaintiffs are unable to ascertain Patent infringement suit. – A complainant their whereabouts or that of another of such may maintain a bill in equity in a Circuit eyewitnesses; and that plaintiffs verily be Court to perpetuate testimony, where it lieve there is danger of losing the testimony shows that defendant charges that an article of other important witnesses through death, manufactured and sold by complainant indisease, or accident. It was held that such fringes a patent owned by defendant, and allegations were sufficient to entitle plaintiffs threatens suit against complainant and its to the relief demanded under this section, customers, but refuses to bring such suits, authorizing the taking of depositions of wit. and that complainant can prove that such nesses in order to prevent a failure or delay patent is void by the testimony of certain

designated witnesses, but not otherwise. Fees and mileage of witnesses. - Where Westinghouse Mach. Co. v. Electric Storage the prevailing party in an action at law in a Battery Co., (C. C. A. 1909) 170 Fed. 430. federal court has taken testimony in a foreign

of justice.

723.

Vol. III, p. 22. (Act of March 9, 1892.]

Relates to manner of taking only. - This and after removal a special commissioner was Act merely relates to the manner of taking appointed by the federal court to take such depositions, and neither enlarges nor restricts testimony, as authorized by Act of March 9, the grounds for taking them prescribed by 1892, ch. 14, it was held that the commissioner R. S. secs. 863, 866, 3 Fed. Stat. Annot. 8, 20. was authorized to enforce the attendance of Zych 0. American Car, etc., Co., (1904) 127 the witnesses by attachment under the auFed. 724; Magone v. Colorado Smelting, etc., thority conferred by the state statute. Zych Co., (1905) 135 Fed. 846; Smith v. Interna V. American Car, etc., Co., (1904) 127 Fed. tional Mercantile Co., 154 Fed. 786.

Manner of objection to mode of taking. Foreign witnesses. -- Under this Act and depositions. - In Zych v. American Car, etc., under the Connecticut law permitting the Co., (1904) 127 Fed. 723, it appeared that suit taking of depositions of nonresidents and pro. was brought against the defendant in the viding for their oral examination, direct and state courts of Missouri, and notice was given cross, it was held that the Circuit Court for to the taking of the depositions of certain the district of Connecticut could grant a witnesses before trial, and subpænas for such dedimus potestatem to take depositions in witnesses were duly issued and served. The Cuba, where otherwise there would be a fail. defendant then removed the case to the fed ure or delay of justice. Compania Azucarera ral court, and after removal applied for the Cubana v. Ingraham, (1910) 180 Fed. 516. appointment of a special commissioner before Following state practice. - Where the laws whom such witnesses might be examined, as of a state in which a court is held provide authorized by Rev. Stat. Mo, 1899, sec. 2883. for the issuance of a commission by the clerk The federal court made such appointment to take depositions of witnesses on interrogaunder Act Cong. March 9, 1892, making it tories attached on notice to the adverse party, lawful to take depositions for nige in the fed- such practice may properly be followed in the eral court in the mode prescribed by the laws federal court with respect to the taking of of the state. It was held that defendant, depositions of witnesses residing in other dishaving itself applied for the appointment of tricts or state. Carrara Paint Agency Co. r. the commissioner, waived its right to object Carrara Paint Co., (1905) 137 Fed. 319. that inasmuch as the witnesses intended to The examination of a party before trial, remain in St. Louis, and were not aged or in authorized by N. Y. Code Civ. Pro., sec. 870, poor health, conditions prescribed by R. S. cannot be required by a federal Circuit Court secs. 861, 863, 866, 3 Fed. Stat. Annot. 7, 8, 20, sitting in that state, by virtue of the declaraas conditions precedent to the taking of proof ration of the Act of March 9, 1892, ch. 14, to be used in the federal courts in advance that in addition to the mode of taking the of the trial, did not obtain, and that the wit. depositions of witnesses in causes pending in nesses were not therefore required to appear the federal District and Circuit Courts it and testify before the commissioner.

shall be lawful to take the depositions or Enforcement of attendance of witnesses. — testimony of witnesses in the mode prescribed Where, prior to the removal of a cause to the by the laws of the state in which the courts federal court, notice of the taking of deposi. are held. Hanks Dental Assoc. t. Internations of witnesses before trial as authorized tional Tooth Crown Co., (1904) 194 U. S. 303, by Rev. Stat. Mo. 1899, sec. 2883, was given, 24 S. Ct. 700, 48 U, S. (L. ed.) 989.

Vol. III, p. 23, sec. 867.

Use of depositions taken to perpetuate testimony. - This section, providing that "any court of the United States may in its dis. cretion admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam which would be so admissible in a court of the state wherein such cause is pend.

ing according to the laws thereof," does not limit the use of such depositions to any particular cases, nor to those taken in any par. ticular manner, but leaves such matters to be determined by the laws of the state. Ohio Copper Min. Co. 0. Hutchings, (C. C. A. 1909) 172 Fed. 201.

Vol. III, p. 24, sec. 869.

Sufficiency of application. — A petition for documents in his possession it is not sufficient a subpena duces tecum is sufficiently definite to allege merely that the documents are mawith respect to the books or documents re. terial and relevant to the issues in the case; quired, where the description is specific but the facts that will enable the court to de. enough to enable the witness to produce them termine that there are prima facie material and without uncertainty. To entitle a party to a relevant must be set out. U. S. v. Terminal subpena duces tecum requiring a witness not R. Assoc., (1907) 154 Fed. 268. a party to the action to produce books and

Vol. III, p. 26, sec. 882.

The records of the Pension Office are ad missible in evidence, equally with the certificate issued, to prove the granting of a pension. Pooler v. U. S., (C. C. A. 1904) 127 Fed. 509.

Exemplified copies of pension vouchers exe. euted thirty years before, made pursuant to this section, prove themselves, and are ad. missible in evidence. Murphy V. Cady, (1906) 145 Mich. 33, 108 N. W. 493.

Presumption of genuineness. — In Wynne v. U. S., (1910) 217 U. S. 234, 30 S. Ct. 447, 54 U.S. (L. ed.) 748, it was held that the genu

ineness of the authentication of a copy of a certificate of enrolment offered in evidence to establish the national character of a vessel on a prosecution for a crime committed on shipboard will be assumed, as will also the official character of the purported signer and the signing by him, or one authorized to sign for him, where there is no evidence casting suspicion upon the genuineness of the copy or of the seal, or the signature, and none which challenges in any way the American character of the ship.

Vol. III, p. 27, sec. 886.

Transcript prima facie evidence. — In U. S. . Pierson, (C. C. A. 1906) 145 Fed. 814, it was held that, in the absence of countervailing evidence in an action on the bond of an Indian agent, the introduction of a duly certi. fied transcript of the books and proceedings of the Treasury Department established a prima facie case in favor of the government entitling it to judgment.

Rulings of Treasury Department. — Where, in an action on the bond of an Indian agent, the transcript of the books and proceedings in the Treasury Department contained a debit and credit statement of the account and a showing of the items in dispute, it was held not to be objectionable because it also contained explanatory memoranda showing the ground of the rulings of the accounting officers concerning the items rejected, and, in some instances, the evidence on which they relied. U. S. o. Pierson, (C. C. A. 1906) 145 Fed. 814.

Evidence of receipt of money, - In U. S. t. Pierson, (C. C. A. 1906) 145 Fed. 814, it was held that in an action on the bond of a United States Indian agent a transcript of the books and proceedings of the Treasury Department was not evidence of the receipt by such agent of moneys that did not come to his hands through the ordinary channels of the department.

Ex parte statement of post-office officials. — This section contemplates the certification only of a bookkeeper's plain statement of account; and therefore a statement made in a certified copy of a postmaster's account, after showing that a charge was made against him, that it was on account of money paid by him to a laborer "for which no service was performed," was held not to be admissible in evidence against him. Nagle v. U. S., (C. C. A. 1906) 145 Fed. 303.

Vol. III, p. 28, sec. 17.

Section not retroactive. - Where, ' in an action on the bond of a United States Indian Department agent, a transcript of the books and proceedings of the Treasury Department, certified and authenticated by the Register of the Treasury, as required by R. S. sec. 886, 3 Fed. Stat. Annot. 27, was offered in evidence, it was held to be immaterial that it was not certified by the Secretary or the Assistant

Secretary of the Treasury, as required by Amendatory Act of March 2, 1895, ch. 177, sec. 10, 28 Stat. L. 809, enacted after the transcript was filed as a part of the record, and in force at the time of the trial, but providing expressly that it related to certificates thereafter made. U. S. v. Pierson, (C. C. A. 1906) 145 Fed. 814.

Vol. III, p. 31, sec. 889.

Account from auditor for Post Office Department. - A certified account from the books of the auditor for the Post Office De

partment comes within this statute. U. S. 0. McCoy, (1904) 193 U. S. 593, 24 S. Ct. 530, 48 U. S. (L. ed.) 805.

Vol. III, p. 32, sec. 891.

Questions of land titles. - A certified copy 1866, and that the land had not been returned of the records of the General Land Office, in or denominated as swamp or mineral land, cluding the certificate of local land officers was held to be competent evidence under this that on the records of their office there were section, on the question of the title of one no homestead pre-emption or other valid claiming as grantee from the railroad comclaims to certain lands within the place limits pany. Howard v. Perrin, (1906) 200 U. S. of the grant to the Atlantic & Pacific Rail- 71, 26 S. Ct. 195, 50 U, S. (L. ed.) 374. road Company, made by the Act of July 27,

Vol. III, p. 33, sec. 892.

Not proof of genuineness of original. -A certified copy of the record of an assignment of a patent with the acknowledgment thereto, although made evidence where the original would be evidence by this section, does not

prove the genuineness of due execution of the original assignment. Eastern Dynamite Co. 1. Keystone Powder Mfg. Co., (1908) 164 Fed. 47.

Vol. III, p. 37, sec. 905.

Statutes of state or territory. - See Hewitt amount of the wages due, and the garnishv. Indian Territory Bank, (1902) 64 Neb. 463, ment was satisfied. The employee then sued 92 N. W. 741.

the receiver in the state court without leave Attestation by clerk. — In Henry Invest. of the federal court, and the order of the fedCo. v. Semonian, (1909) 45 Colo. 260, 100 Pac. eral court, properly authenticated, was intro425, it was held that a transcript of the pro duced in evidence. It was held that under ceedings of a court of another state, to which this section the order was entitled to be given was appended a certificate of the judge alone full faith and credit in the state court and that the foregoing was a complete transcript could not be collaterally attacked, and should of the proceedings of the County Court in a have been treated by the state court as concertain county, and in a case specified, was clusive against its jurisdiction. not admissible in evidence.

Records of state courts offered in federal By deputy. - To the same effect as the courts. - This statute does not apply to juoriginal note, see Edwards 0. Smith, (Tex. dicial records of state courts where offered in 1911) 137 S. W. 1161.

evidence in a federal court. Edwards 0. Certificate of judge or magistrate. - To the Smith, (Tex. 1911) 137 S. W. 1161. same effect as the first paragraph of the origi State courts must give full faith and credit. nal note, see Hagan v. Snider, (1906) 44 Tex. - The effect of the provision regarding full Civ. App. 139, 98 S. W. 213; Wolf v. King, faith and credit is that in the courts of other (1908) 49 Tex. Civ. App. 41, 107 S. W. 617; states the judgment of a court of one state is Edwards v. Smith, (Tex. 1911) 137 S. W. 1161. not impeachable except for fraud or want of

To the same effect as the third paragraph jurisdiction; is indisputable proof that it of the original note, see Dusenberry v. Ab rests upon an unanswerable cause of action; bott, (1901) i Neb. (unofficial) Rep. 101, 95 is conclusive evidence that the right to its enN. W. 466.

forcement is wholly unaffected by a laches As to sufficiency of certification, see Boh or lapse of time which preceded its rendition; lander 1. Heikes, (C. C. A. 1909) 168 Fed. 886. and gives a right of action for its enforce

Sufficiency of authentication. See Sey. ment subject to limitation and other laws mour v. Du Bois, (1906) 145 Fed. 1003; of the forum which regulate, but do not deny, Nadel v. Campbell, (1910) 18 Idaho 335, 110 unreasonably restrict, or oppressively burden Pac. 263; Brown V. Baxter, (1908) 77 Kan. the exercise of the right. Lamb v. Powder 97, 94 Pac. 155, 574; Halfhill V. Malick, River Live Stock Co., (1904) 132 Fed. 434, 65 (1911) 145 Wis. 200, 129. N. W. 1087.

C. C. A. 570. Mode of authentication not exclusive. - In Mutual L. Ins. Co. v. McGrew, (1903) To the same effect as the first paragraph of 188 U. S. 291, 23 S. Ct. 375, 47 U, S. (L. ed.) the original note, see Tomlin v. Woods, (1904) 480, it was held that a decision of a state 125 Ta. 367, 101 N. W. 135.

court cannot be reviewed in the Supreme To the same effect as the second paragraph Court of the United States on the ground of the original note, see Sullivan v. Kenney, that by it full faith and credit were denied (Ia. 1910) 126 N, W. 349.

to an Hawaiian judgment, in violation of Records and proceedings of United States U. S. Const., art. 4, sec. 1, as carried out by courts. - To the same effect as the first para R. S. sec. 905, where the judgment of the graph of the original note, see Jordan v. Mc trial court was rendered prior to the Act Donnell, (1907) 151 Ala. 279, 44 So. 101; of April 30, 1900, providing a government for Edwards v. Smith, (Tex. 1911) 137 S. W. 1161. Hawaii, and such contention was not brought

It seems that this section is not applicable to the attention of the highest state court in where judicial records of a federal court are any form. offered in evidence in a state court, especially In Anglo-American Provision Co. v. Davis where the federal judgment is of the state Provision Co., (1903) 191 U. S. 373, 24 S. Ct. in whose court it is offered as evidence. Ed. 92, 48 U. S. (L. ed.) 225, it was held that full wards v. Smith, (Tex. 1911) 137 S. W. 1161. faith and credit was not denied an Illinois

But in Harmon v. Best, (Ind. 1910) 91 N. E. judgment by N. Y. Code Civ. Pro., sec. 1780, 19, it appeared that a federal Circuit Court which, as construed by the New York courts, appointed a receiver for a railroad, and there. precludes the maintenance of an action on after entered an order in the receivership pro such judgment by one foreign corporation ceeding appointing a commissioner to hear against another, because it is not upon a garnishment suits against employees of the cause of action which arose within the state. railroad, and providing how such claims could A judgment of the Supreme Court of the be adjudged. A railroad employee was gar- United States to the effect that a policy of nished before the commissioner, and the re- fire insurance could not be recovered upon as ceiver, pursuant to the order, reported the it stood nor be helped out by any doctrine of

[ocr errors]

the common law is not denied full faith and held that the question whether a judgment credit by an adjudication of a state court dismissing an action on a note in New York that such judgment is not a bar to a suit on the ground that it was barred by limitain equity to reform the policy so that it will tions of that state was a determination on express consent to concurrent insurance, and the merits of the case, and therefore barred to recover upon such policy as reformed. another action on the note in Kentucky, deNorthern Assur. Co. r'. Grand View Bldg. pended on the effect which would be given to Assoc., (1906) 203 U. S. 106, 27 S. Ct. 27, 51 such judgment by the courts of New York, V. S. (L. ed.) 109.

and that where under the decisions of New In Fauntleroy v. Lum, (1908) 210 U. S. 230, York a judgment based solely on the statute 28 S. Ct. 641, 52 U, S. (L. ed.) 1039, it was of limitations is held to affect the remedy held that the Mississippi courts cannot deny only, and not the cause of action, such judg. to a judgment of a Missouri court, based upon ment was no bar to the plaintiff's action in an award in arbitration proceedings in Mis Kentucky, where a different statute of limisissippi, the full faith and credit secured by tation prevailed. Brand r. Brand, (1903) 116 V. S. Const., art. 4, sec. I, to the judgments Ky. 785, 76 S. W. 868. of sister states, because the original contro Completeness of transcript. — In Montgomversy grew out of a gambling transaction in ery c. Consolidated Boat Store Co., (1903) futures in Mississippi, which is made a mis. 115 Ky. 156, 72 S. W. 816, it was held that demeanor by Miss. Annot. Code 1892, secs. a transcript of the judgment of a sister state 1120, 1121, 2117, which further provide that on which execution had been issued and cercontracts of that character shall not be en tified, as required by sections 905-909, so as forced by any court.

to entitle the judgment to full faith and In order that a judgment or decree shall be credit, would be deemed to contain a complete conclusive in an action brought thereon in copy of the judgment, though it differed in another state, it must not only be conclusive form from the form of judgment used in in the jurisdiction where rendered, but also Kentucky. final in character, and establish a fixed and Conclusiveness as to jurisdiction. — Neither certain liability, and therefore a decree for the full faith and credit clause of the Federal alimony and costs will support an action in Constitution (Const., art. 4, sec. 1) nor this another state in so far as it is for a sum section passed in conformity therewith predue at the time of its rendition, and which vents an inquiry into the jurisdiction of the is absolutely awarded, but not with respect to court of a sister state by which a judgment future payments, for which it provides, but rendered therein is offered in evidence, and a as to which it remains subject to modification copy of the record, though duly authenticated, at any time in the discretion of the court. may be contradicted as to the facts necessary Israel v. Israel, (C. C. A. 1906) 148 Fed. 576, to give jurisdiction, or where it appears in a 8 Ann. Cas. 697.

collateral proceeding in another state that In Tilt r. Kelsey, (1907) 207 U. S. 43, 28 such facts did not exist, the record is a nulS. Ct. 1, 52 U. S. (L. ed.) 95, it was held that lity, though it may contain recitals that the the full faith and credit due the probate pro- facts did exist. De Vall v. De Vall, (Ore. ceedings of the New Jersey courts do not re- 1910) 109 Pac. 755. quire that the courts of New York shall be Not applicable to courts of limited jurisbound by the adjudication of the New Jersey diction. — Strecker 1. Railson, (1907) 16 N. courts on the question of domicile.

D. 68, 111 N. W. 612. In Andrews v. Andrews, (1903) 188 U. S. Probate of will. – On proceedings to pro14, 23 S. Ct. 237, 47 U. S. (L. ed.) 366, it bate a will which had been admitted to prowas held that the full faith and credit clause bate in Illinois, where the copy of the will

e Federal Constitution is not violated by and of the record showing the admission to the refusal of the Massachusetts courts, act probate were not authenticated by the attesing in accordance with Mass. Pub. Stat., ch. tation of the officer having charge of the rec146, sec. 41, to give effect to a decree of di ord, nor certified by him to have been com. Force rendered by a court of another state pared with the original, and to be a true copy in a suit instituted by one who temporarily thereof, as required by this section, it was left the state of Massachusetts, where he held that the County Court of another state was domiciled, for the purpose of obtaining had no jurisdiction to admit the will to proa divorce for a cause which occurred in that bate. In re Box, (1906) 127 Wis. 264, 106 state while the parties resided there, but N. W. 1063. which was not a ground for divorce in that Orders in supplementary proceedings. In state.

Orient Ins. Co. 1". Rudalph, (1905) 69 N. J. Rule of evidence. - This section providing Eq. 570, 61 Atl. 26, it was held that as supthat the record of a judgment after due plementary proceedings in the state of New notice in one state shall be conclusive evi York are not considered special proceedings dence in the courts of another state or of the before a court or officer of limited jurisdicUnited States of a matter adjudged, etc., tion, but as a new remedy in an action in prescribes a rule of evidence rather than one which the court has general jurisdiction, the of jurisdiction. Israel 1. Israel, (1904) 130 production and proof in a New Jersey court Fed. 237; Clifford 4. Williams, (1904) 131 Fed. of an order by a court of New York appoint160; Beauchamp !'. Bertig, (1909) 90 Ark. ing a receiver in supplementary proceedings 351, 119 S. W. 75; De Vall r'. De Vall, (Ore. there, and reciting the facts necessary to give 1910) 109 Pac. 755.

the court jurisdiction, furnishes conclusive Limitations. — Under this section it was evidence of the regularity and validity of the

of t

« PreviousContinue »