11 F. 813 | E.D.N.Y | 1882
Appeal from taxation of costs under the decision in the above cause, made December 27,1881, (9 Fed. Rep. 578,) having been taken, that decision was so far modified as to allow no costs to the plaintiff on the demurrer. The defendant having failed to answer within the ten days given, plaintiff’s solicitor applied for an order to he served on the president of the company defendant to show cause why he should not he punished as for a contempt in not so answering, and cited Coveny v. Athill, Dick. 355, and Lancaster v. Lancaster, 6 Sim. 439, stating also in open court that the sole reason for applying for the order was to lay a- foundation for a motion to issue the commission to take testimony which was prayed for in the hill. Upon this the order to show cause was refused on the ground that the order to attach the defendant would be useless, because it would not tend to establish the truth of the allegations in the bill of the complainant. Thereafter solicitor for complainant applied on notice for a commission to issue, and defendant opposed on the ground that issue had not been joined in the cause. The objection was overruled, and an order made for a commission to take the testimony of the witness named in the bill, in perpetuara rei meraoriam, upon written interrogatories to be attached to the commission.