118 F. 612 | U.S. Circuit Court for the District of Indiana | 1902
The plaintiff has moved the court to suppress the depositions of some 30 witnesses of the defendants on the ground that each witness lives within 100 miles of the place of trial. It is shown in support of the motion that each witness lives within less than 100 miles of the place of trial, measured by a direct line. It is shown in opposition thereto, and it was conceded on the hearing of the motion, that each of said witnesses, by the ordinary, usual, and shortest route of public travel, lives at least 140 miles from the place of trial.
Section 863, Rev. St. U. S., in force since September 24, 1789 [U. S. Comp. St. 1901, p. 661], provides “that the testimony of any witness may be taken in any civil cause depending in a district or circuit court of the United. States de bene esse when the witness lives at a. greater distance from the place of trial than one hundred miles.”
Section 876, Rev. St. U. S. [U. S. Comp. St. 1901, p. 667], in force since March 2, 1793, provides that “subpoenas for witnesses who are required to attend a court of the United States in any district may run into any other district: provided, that in civil cases, the witnesses living out of the district in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same.”
The question for decision is, how is the distance from the place of residence to the place of trial to be measured ? By a straight line from the one place to the other, or by the ordinary, usual, and shortest route of public travel ? In my opinion, the distance is to be determined by
This rule for the determination of the distance between the place of residence and the place of trial seems to me to be the only reasonable one, and, in my opinion, it ought to be applied in determining a party’s right to take the deposition of a witness. The fact, if it be a fact, that a witness may be compelled by subpoena to attend the court where he resides within the district at a greater distance than 100 miles is not influential in determining the party’s right to take the deposition of the witness instead of compelling his attendance. Nor does the fact, if it be a fact, that a witness living within the district, and more than 100 miles from the place of trial, who has been subpoenaed and compelled to attend, may be entitled to his fees for travel for a greater distance than 100 miles, affect the construction of section 863, touching the right of parties to take the depositions of witnesses.
For these reasons the motion to suppress the depositions of witnesses, on the ground that their places of residence, measured by a mathematically straight line, are severally less than 100 miles from the place of trial, will be overruled. So ordered. The plaintiff is given an exception.