29 F. 813 | U.S. Circuit Court for the District of Southern New York | 1887
The circuit court of the United States for the district of Indiana appointed A. J. Ricks, Esq., special master, to take and state the accounts of a receiver in two cases pending before said court, and, among other things, to inquire and report into the amount, consideration, and ownership of any receiver’s certificates which may have been issued by said officer. The master found it necessary to take the testimony in the city of Now York of some witnesses living in said city, obtained an order of this court for a subpoena, which was duly issued by the clerk, and was duly served upon Herbert Steward, a person who lias his legal domicile in Connecticut, but who lives in this district. Steward personally attended before the master on the day, but not at the hour, named in the subpuina, and promised to attend again at the hour appointed by the master, but did not do so. By order of ibis court ho Was again subpoenaed to appear and testify before the master, at a named place in said city, and on a named day, and, in default of appearance, ivas directed to appear before ibis court on another day to show canse why he should not be punished for contempt. The subpoena and notice were duly served, Steward did not obey the subpoena, the parties have now appeared, and the question at issue is as to the power of this court, by its subpoena, to compel Steward’s attendance before the special master appointed by another circuit court in a cause pending therein.
It is settled, and the practice has been in accordance with the decision, that a circuit court in one district has power, under the sixty-seventh rule in equity, to appoint a special examiner to take testimony in another circuit. Railroad Co. v. Drew, 3 Woods, 691. The decision is founded upon the literal language of the rule, and is justified by the fact tliat a different constiuction would prevent tho convenient taking of testimony. If circuit courts have such power, 1 am of opinion that under rule 78 this court has power to issue a subpoena commanding a person living in this district to appear and testify before an examiner, or before a master who has been appointed by another circuit, and who is discharging the duties of his office in this district, and is also enabled