| U.S. Circuit Court for the District of Indiana | Feb 6, 1895
Section 824 of the Revised Statutes of the United States allows to attorneys a fee of $2.50 “for each deposition taken and admitted in evidence in a cause.” To' entitle an attorney to this fee, there must be a concurrence of three things, viz. (1) there must be a deposition; (2) it must have been taken in a cause; and (3) it must have been admitted in evidence therein. In this case the testimony of the witnesses was taken by a special examiner, who was appointed by the court for the purpose of taking it for use upon the hearing of a motion for a preliminary injunction; but; the motion was subsequently withdrawn, and the testimony was not used for that purpose. It was afterwards agreed that the testimony which was so taken should be “treated as taken after issue joined,” and read in evidence upon the final hearing of the cause in which it was taken, and it was so treated and used. There is no controversy about these facts, and the statement of them establishes the second and third elements of the claim to these fees, for the testimony of the witnesses was both taken and admitted in evidence in a cause. Tt only remains to be ascertained Whether the testimony which was so taken find admitted in evidence may be properly described as “depositions,” within the meaning of the statute.
Primarily, a deposition is simply written testimony. It is testimony that is deposited or laid down in writing. There are only two modes of producing the testimony of a witness before a court upon the trial or hearing of a cause. It may be produced by reading his deposition, or it may be produced orally; and the “oral examination of a witness,” within the meaning of the sixty-seventh rule in equity, is not synonymous with the “oral testimony of a witness.” Ferguson v. Dent, 46 Fed. 89, 90. The rule provides for taking depositions upon “oral examination,” instead of written interrogatories. Oral testimony on the trial or hearing of a cause must be spoken and delivered by the witness in the presence of the court. Depositions are a substitute for it. Testimony that is orally delivered before any person who is authorized to receive it, and"reduced to writing for use in a court, becomes a deposition. But, in order to vendor it admissible as evidence in a court, it must be taken according to law. A legal deposition, according to Bouvier is “the testimony of a witness, reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal, or according to the provision of some statute law, to be used on the trial of some question of fact in a court of justice.” 1 Bouv. Law Dic. tit. “Deposition.” In Nail Factory v. Corning, 7 Blatchf. 16" court="None" date_filed="1869-09-15" href="https://app.midpage.ai/document/troy-iron--nail-factory-v-corning-8638004?utm_source=webapp" opinion_id="8638004">7 Blatchf. 16, Fed. Cas. No. 14,197, it was said by Kelson, J., that it is “testimony taken out of court under an authority which will entitle it to be read as evidence in court, and has no relation to oral testimony taken in court, or before a master. It applies in cases at common law where depositions are given in evidence on the trial, and in suits in equity where depositions are read at the hearing.” See, also, Stimpson v. Brooks, 3 Blatchf. 456" court="None" date_filed="1856-04-15" href="https://app.midpage.ai/document/stimpson-v-brooks-8637487?utm_source=webapp" opinion_id="8637487">3 Blatchf. 456, Fed. Cas. No. 13,454. The signing of a deposition is a mode of authentication only. If the witness refuses to sign his deposition, it may be signed by the special master
The testimony in this case was taken by one-of the stenographers in the courts of the state, under an appointment of this court as a special examiner in chancery. He was selected by the parties for appointment, and was appointed at their instance. Examiners are appointed under the equity rules, like special masters. There is no statutory rule of compensation or schedule of fees that is expressly applicable to them. The compensation of special masters is fixed by the allowance of the court. In making an allowance to an examiner, the fees of clerks and commissioners for taking depositions might furnish.analogies for the guidance of the court. On the other hand, stenographers in the courts of the state have an established rate of charges for ■ their services,. and the claim and taxation of compensation for the examiner in this case are founded thereon. There does not appear to have been any contract between the examiner and the parties. Their attorneys were practicing in the courts of the-state, and presumably were acquainted with the estab