139 F. 843 | U.S. Circuit Court for the District of Southern New York | 1905
The action is for trespass in removing ore from a mining property of complainant, and witnesses are being examined before a commissioner under section 863, Rev. St. [U. S. Comp. St. 1901, p. 661], Inasmuch as this is not a suit in equity, the peculiar rules governing the taking of testimony in such suits laid down in Blease v. Garlington, 92 U. S. 1, 23 L. Ed. 521, and in many decisions in this circuit following that case, have no application.
What happens is this: A witness is asked a question. It is objected to as being irrelevant or immaterial, or as calling for incompetent testimony, or as inquiring touching a matter about which the witness is privileged not to answer. The commissioner makes no ruling — he has no power to make a ruling upon which an exception can be based — and the witness does not answer. When enough unanswered questions have thus been accumulated, the matter is brought before the court for a ruling, upon an application to compel the witness to answer; the commissioner certifying the record. It is right and proper that there should be a ruling by the court on each question, so that an exception may preserve all rights of the party asking the question. But what court shall pass upon the objections? Shall it be the court in which the action is pending, and
Quite frequently upon a trial a question put to a witness does not seem relevant to the issues raised by the pleadings, but the propounder of the question is allowed to state to what point the question is directed, and how it is to be connected with other proofs.. Often upon such a statement the court is satisfied that it is a reasonable one, since the whole case for the propounder’s side cannot be put in at once, and rules accordingly. In the record before the commissioner, this statement does not appear, but, in the rulings.
“Plaintiff offers tbis evidence to sbow that, if tbe ore was extracted under tbe nominal direction of tbe Johnstown Company, and reduced at tbe works of the Basin Reduction Company, those companies were the creations of the Montana Ore Purchasing Company and the other defendants; their officers being irresponsible clerks, and the proceeds of the ores going to the defendants named in the complaint.”
The commissioner is instructed to see to it that the record which he returns to the Montana Circuit Court shows that each question objected to was coupled with this explanation, that each objection separately considered was ruled upon by this court, and that an exception to each ruling was duly reserved by the party to whom the decision was adverse.
Upon the argument a written statement was filed on behalf of one of the witnesses to the effect that some of the questions which he had declined to answer, he was now ready to answer. It is assumed that he will answer them, and therefore those questions are. not here ruled on.
With apologies, therefore, to the trial judge in Montana, if the errors of this court thus reserved by exceptions may produce a mistrial, the several objections are here ruled on as if the cause were now on trial under the pleadings, and with no other evidence than that already elicited from these three witnesses, before the court.
Examination of Arthur P. Heinze.
Q. 37. Objection sustained. The opinion of the witness is immaterial.
Q. 44. Objection sustained.
Q. 51. Objection sustained.
Q. 55. Objection overruled.
Q. 67. Objection overruled.
(Here follow 50 questions, objection to which were sustained or overruled.)
On Rehearing.
Upon a similar application to compel witnesses in this cause to answer the writer expressed his opinion as to the practice, and ruled upon the materiality, relevance, and competency of the questions, instead of requiring the witnesses to answer them all. Since then he has learned that his associates are inclined to take a totally different view of the practice under the section, and to hold that it should be conformed to that prescribed by the Supreme Court for equity causes in Blease v. Garlington, 92 U. S. 1, 23 L. Ed. 521. It is thought that to adopt for actions at law the practice prevailing since Blease v. Garlington in equity causes would be lamentable. The taking of testimony in equity causes has become subject to such abuses as to call forth on several occasions the vigorous reprobation of the court to which such testimony was submitted, although
The witness is directed to answer. Upon his further refusal an order will be made punishing him for his contempt in such terms as to insure opportunity to sue out writ of error. Arrangements may be made for suspending the infliction of the punishment until after appeal shall have been prosecuted and disposed of.