117 F. 568 | N.D. Iowa | 1902
From the certificate of the referee, it appears that one H. O. Michaels, a resident of 'Marshalltown, Iowa, was served with a subpoena directing him to appear as a witness in the bankruptcy proceedings of Charles R. Hemstreet, before the referee for Palo Alto county, at a hearing set for August i8th, at Emmetsburg, Iowa; the mileage and fee for one day’s attendance being duly tendered him. The witness declined to attend at the time and place named, claiming that as his residence was more than ioo miles from Emmetsburg, where the hearing was to be had before the referee, he was not required to attend in person; and the question presented by the certificate of the referee is whether, under the provisions of the bankrupt act, a witness can be compelled by a subpoena to attend a hearing before a referee at a place more than ioo miles from his residence. Counsel for the creditors contend that by the express terms of the proviso to section 41 of the bankrupt act which enacts “that no person shall be required to attend as a witness before a referee at a place outside of the state of his residence, and more than one hundred miles from such place of residence,” it was the clear intent of congress to enact that referees should have the right to require the attendance before them as witnesses of all persons residing within the state wherein the referee is' acting, and that a witness cannot lawfully refuse obedience to a subpoena calling him to appear before a referee, unless he is a nonresident of the state, and resides more than 100 miles, from the place of hearing. If this is the correct construction of the proviso just cited it follows that a person can be compelled