The Act of March 9, 1892, 27 Stat. 7, in regard to taking
testimony, does not repeal or modify § 861, Rev.Stat., or create
any additional exceptions to those specified in the subsequent
sections by enlarging the causes or grounds for taking depositions,
and is not supplementary to § 914, Rev.Stat.
Page 194 U. S. 304
A circuit court of the United States in the State of New York is
not authorized to make an order for the examination of a party
before trial before a master or commissioner appointed pursuant to
§§ 870
et seq., of the Code of Civil Procedure of New
York.
The certificate in this case is as follows:
"This cause comes here upon a writ of error for the review of
the judgment of the Circuit Court for the Southern District of New
York, entered upon the verdict of a jury in favor of the defendant
in error, The International Tooth Crown Company, sustaining the
validity of a patent and awarding damages for infringement. Upon
examination of the record, it appears that the sole evidence of
infringement was found in the deposition of the president of the
Hanks Dental Association, the plaintiff in error, taken pursuant to
an order of the circuit court under sections 870
et seq.
of the Code of Civil Procedure of the State of New York, the
defendant in error contending the examination of a party before
trial, if permitted by the law of the state, is authorized by Act
of Congress of March 9, 1892. 27 Stat. 7."
"The taking of the deposition was objected to at every stage,
and when offered in evidence at the trial, it was again duly
objected to, and to its reception the plaintiff in error duly
excepted."
"Whether this practice is warranted or not is the question upon
which we desire the instructions of the Supreme Court."
"
Question Certified"
"Upon the facts above set out, the question of law concerning
which the court desires the instruction of the Supreme Court
is:"
"Was the order of the circuit court directing the president of
the Hanks Dental Association, the defendant in that court, to
appear before a master or commissioner appointed pursuant to the
provisions of sections 870
et seq. of the Code of Civil
Procedure of the State of New York valid and authorized under the
Act of March 9, 1892? "
Page 194 U. S. 305
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Section 870 of the Code of Civil procedure of New York provides
that
"the deposition of a party to an action pending in a court of
record, or of a person who expects to be a party to an action about
to be brought, . . . may be taken at his own instance or at the
instance of an adverse party or of a co-plaintiff or codefendant at
any time before the trial, as prescribed in this article."
And succeeding sections set forth how such examinations may be
ordered.
In
Ex Parte Fisk, 113 U. S. 713,
decided at October term, 1884, it was held that this statute was in
conflict with section 861 of the Revised Statutes of the United
States, and not within any of the exceptions to the rule therein
prescribed. The sections bearing on the subject were thus
summarized by Mr. Justice Miller, who delivered the opinion of the
Court.
" SEC. 861. The mode of proof, in the trial of actions at common
law, shall be by oral testimony and examination of witnesses in
open court, except as hereinafter provided."
" SEC. 863 The testimony of any witness may be taken in any
civil cause depending in a district or circuit court, by deposition
de bene esse, when the witness lives at a greater distance
from the place of trial than one hundred miles, or is bound on a
voyage to sea, or is about to go out of the United States, or out
of the district in which the case is to be tried, and to a greater
distance than one hundred miles from the place of trial, before the
time of trial, or when he is ancient or infirm."
"The remainder of this section, and §§ 864 and 865, are
directory as to the officer before whom the deposition may be
taken, the notice to the opposite party, and the manner of taking,
testifying, and returning the deposition to the court. "
Page 194 U. S. 306
" SEC. 866 In any case where it is necessary, in order to
prevent a failure or delay of justice, any of the courts of the
United States may grant a
dedimus potestatem to take
depositions according to common usage, and any circuit court, upon
application to it as a court of equity, may, according to the
usages of chancery, direct depositions to be taken
in perpetuam
rei memoriam, if they relate to any matters that may be
cognizable in any court of the United States."
"Section 867 authorizes the courts of the United States, in
their discretion, and according to the practice in the state
courts, to admit evidence so taken, and §§ 868, 869, and 870
prescribe the manner of taking such depositions, and of the use of
the subpoena
duces tecum, and how it may be obtained."
Mr. Justice Miller then continued:
"No one can examine these provisions for procuring testimony to
be used in the courts of the United States, and have any reasonable
doubt that, so far as they apply, they were intended to provide a
system to govern the practice, in that respect, in those courts.
They are, in the first place, too complete, too far-reaching, and
too minute to admit of any other conclusion. But we have not only
this inference from the character of the legislation, but it is
enforced by the express language of the law in providing a defined
mode of proof in those courts, and in specifying the only
exceptions to that mode which shall be admitted."
And he further said:
"Its purpose is clear to provide a mode of proof in trials at
law, to the exclusion of all other modes of proof. . . . It is not
according to common usage to call a party in advance of the trial
at law, and to subject him to all the skill of opposing counsel, to
extract something which he may then use or not, as it suits his
purpose. . . . Every action at law in a court of the United States
must be governed by the rule or by the exceptions which the statute
provides. There is no place for exceptions made by state statutes.
The court is not at liberty to adopt them, or to require a party to
conform to them. It has no power to subject a party to such an
examination as this. "
Page 194 U. S. 307
Sections 721 and 914 were held inapplicable because the law of
the state was inconsistent with the law of Congress.
And see
Beardsley v. Littell, 14 Blatchf. 102, Blatchford, J.;
United States v. Pings, 4 F. 714, Choate, J.;
Fogg v.
Fisk, 19 F. 235, Wallace, J.;
Luxton v. North River Bridge
Co., 147 U. S. 337,
147 U. S.
338.
In
Union Pacific Railway Company v. Botsford,
141 U. S. 250,
decided at October term, 1890, the question was whether a court of
the United States could order a plaintiff, in an action for an
injury to the person, to submit to a surgical examination in
advance of the trial, and it was held that it could not.
Mr. Justice Gray, among other things, said:
"Congress has enacted that 'the mode of proof in the trial of
actions at common law shall be by oral testimony and examination of
witnesses in open court, except as hereinafter provided,' and has
then made special provisions for taking depositions. Rev.Stat. §§
861, 863
et seq. The only power of discovery or inspection
conferred by Congress is to 'require the parties to produce books
or writings in their possession or power which contain evidence
pertinent to the issue in cases and under circumstances where they
might be compelled to produce the same by the ordinary rules of
proceeding in chancery,' and to nonsuit or default a party failing
to comply with such an order. Rev.Stat. § 724. And the provision of
§ 914 by which the practice, pleadings, and forms and modes of
proceeding in the courts of each state are to be followed in
actions at law in the courts of the United States held within the
same state neither restricts nor enlarges the power of these courts
to order the examination of parties out of court."
Ex Parte Fisk was quoted from and applied, and the
opinion concluded:
"The order moved for, subjecting the plaintiff's person to
examination by a surgeon, without her consent, and in advance of
the trial, was not according to the common law, to common usage, or
to the statutes of the United States. The circuit court, to adopt
the words of Mr. Justice Miller,
Page 194 U. S. 308
'has no power to subject a party to such an examination as
this.'"
March 9, 1892, the following act was approved (27 Stat. 7):
"Chap. 14. An Act to Provide an Additional Mode of Taking
Depositions of Witnesses in Causes Pending in the Courts of the
United States. Be it enacted, etc., that, in addition to the mode
of taking depositions of witnesses in causes pending at law or
equity in the district and circuit courts of the United States, it
shall be lawful to take the depositions or testimony of witnesses
in the mode prescribed by the laws of the state in which the courts
are held."
Mode usually means the manner in which a thing is done, and this
act relates to the manner of taking "depositions and testimony,"
which the title treats as equivalent terms, and which may be so
regarded so far as the question before us is concerned. But it is
contended that the word "mode" as used in the act has a broader
significance, and embraces the production of evidence, thereby
qualifying section 861, which prescribes the mode of proof.
We cannot concur in this view. The act is clear upon its face,
and does not call for construction, or at all events is susceptible
of but one construction. It does not purport to repeal in any part
or to modify section 861 or to create additional exceptions to
those specified in the subsequent sections by enlarging the causes
or grounds for taking depositions, and as it is applicable alone to
the taking of depositions or testimony in writing, we cannot
attribute to it any such effect, nor hold, this being so, that it
is supplementary to section 914.
That section refers to "the practice, pleadings, and forms and
modes of proceeding in civil causes," and Mr. Justice Blatchford,
then district judge, in
Beardsley v. Littell, thought the
expression "forms and modes of proceeding" did not necessarily
include the subject of evidence. But, be that as it may, we do not
think the words "mode of taking" were used in this act with the
intention of expanding the scope of
Page 194 U. S. 309
the section so as to cover the production of testimony through
the examination of a party before trial.
In short, the courts of the United States are not given
discretion to take depositions not authorized by federal law, but,
in respect of depositions thereby authorized to be taken, they may
follow the federal practice in the manner of taking, or that
provided by the state law.
United States v. Fifty Boxes,
92 F. 601.
In
National Cash Register v. Leland, 77 F. 242, it was
ruled by the Circuit Court for the District of Massachusetts that
the act of 1892 did not
"enlarge the instances in which depositions may be taken or in
which answers may be obtained upon interrogatories, for use as
proof in the federal courts,"
and
"was only intended to simplify the taking of depositions by
providing that the mode of taking in instances authorized by the
federal laws, might conform to the mode prescribed by the laws of
the state in which federal courts were held,"
and this was approved by the Circuit Court of Appeals for the
First Circuit. 94 F. 502. The conclusions announced by the Circuit
Court of Appeals for the Fifth Circuit in
Texas & Pacific
Railway Co. v. Wilder, 92 F. 953, and by the Circuit Court for
the District of Kansas in
Shellabarger v. Oliver, 64 F.
306; for the District Court of Indiana in
Tobor v. Indianapolis
Journal Newspaper Co., 66 F. 423; for the Western District of
Missouri in
Seeley v. Kansas City Star, 71 F. 556; for the
Eastern District of Pennsylvania in
Despeaux v. Pennsylvania
Railroad Company, 81 F. 897; for the Eastern District of
Missouri in
Zych v. American Car & Foundry Company,
127 F. 728 -- are to the same effect. The decision of the circuit
court in this case is to the contrary (101 F. 306), and was
concurred in by the Circuit Court for the Northern District of
Washington in
Smith v. Northern Pacific Railway Company,
110 F. 341.
In
Camden & Suburban Railway Company v. Stetson,
177 U. S. 172,
October term, 1899, the question of the power of
Page 194 U. S. 310
the Circuit Court for the District of New Jersey, under a
statute of New Jersey providing therefor, was under consideration,
and the power sustained. The validity of the statute had been
affirmed by the Supreme Court of New Jersey, and in the course of
the opinion of this Court, it was said:
"The validity of a statute of this nature has also been upheld
in
Lyon v. Manhattan Railway Company, 142 N.Y. 298,
although the particular form of that statute would probably be
regarded as conflicting with the law of Congress in relation to the
examination of a party as a witness before trial, and hence might
not be enforced in courts of the United States sitting within the
State of New York."
Section 873 of the New York Code of Procedure provided that,
"in every action to recover damages for personal injuries, the
court or judge, in granting an order for the examination of the
plaintiff before trial, may, if the defendant apply therefor,
direct that the plaintiff submit to a physical examination,"
and in
Lyon v. Manhattan Railway Company, the court of
appeals held that the physical examination could only "be procured
in the same way and as part of the examination of the party before
trial;" that it could not be had apart from, and independent of,
the examination before trial. The reference to the New York statute
in
Camden & Suburban Railway Company v. Stetson, so
far as it goes, indicates the opinion of the Court that the ruling
in
Ex Parte Fisk remained unaffected by the Act of March
9, 1892, in any substantial particular. We think that that ruling
applies, and that the question must be answered in the
negative.
So ordered.