The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-07-19
DISPOSITIONS.
Judge Turner on State and Federal
Practice.

, such mode of taking is not lawful in the court
a of the United States
!, u. mat section 9ii OF the revised statute
authorizes it, and, (2) that section as au
p thorlZeS the several circuit and district court
+ TO make rules, etc., and regulate their owl
= practice as may be necessary or convenient
{ etc, and 80 that this court has by virtue VI
d the power given, adopted the mode prescribc1
f by the state statutes Tor the taking of drpost
| lions in this court.
: In 1872 there We're certain rules adopted and
5 entered OF record in this court. Rule No
: | reads THE modes Of proceeding prescribed
| by the laws OF Texas, where they do not con
, | flict with the laws of the United States. or q
. | rule of the supreme Court of the United States
| or of this court, are adopted
Rule No. 10 provides commissioners to take
: examination of witnesses. and depositiOns and
= all testimony IN a cause may be taken in the
: manner and subject to the regulations, so lar
, rs they are applicable mutatiS mutandiS pre-
: Scribed by the laws of Texas
will first consider these rules. Ii is evident
that it was not thought that by rule No. pro-
Vision had been made for taking deposi ions
: The terms used, however, are PROCEEDINGS
PRESCRIBED BY THE LAWS OF TEXAS If
, TINS was thought sufficient then rule No. 10 was
unnecessary.
What does rule 10 undertake to do? ! an
) swer, nothing aflirmaIively. The dispositions
must be taken subject to the regulations, and
Emntatls mutandls) the necessary changes
, being made. What regulations and what are
the necessary changes? ] conclude the pro-
visions of the United States statute, viz: Sec
| tOnS sos and S66. This last section provides
} that i dedimuS patestatum may issue when il
| becomes necessarily prevent Il failure or delay
of justice, and the necessity must be made to
appear to the court. A commission is not
| granted to any and all litigantS, but it only
issues when the necessity is made to appear.
This is one necessary change. By the laws of
| Texas dispositions may be taken in anycOunty.
even in the county where the suit is pending.
without reference to the distance from the
place of trial VIII it be said that dispositions
may be taken TO be read in the federal cOnrtS
where the witness resides within one hundred
miles OF the place of trial? think not This,
then, is another necessary change. Authors
could be suggested, but not deemed necessary.
The law of congress, section sol, provides that
THE mode OF proof III the trial of actions at
common law shall be by oral testimony and
examination of witnesses in open court, except
| as hereinafter provided.
Section S62 provides for the mode of proof in
eases of equity and admiralty, and provides it
| shall be i'll accordance with the rules preScrb-
ed by the supreme court except as therein spe-
| cially provided for.
| Then came the exceptions sections 500 and
SG6, and these are the only exceptions in the
| statutes. So carefully did congress guard the
| rights of litigantS to have the witness before
| the court and jury, and the value of this mode
OF ellciting evidence is understood by every
| practitioner.
| 1t is urged that by virtue of section 91S this
| court was authorized to make rules, ETC., and
| that under that authority this court has adopt
! ed rules Nos. 1 and To- and that isisuficient Tor
| the purpose. Let us see what congress has
| done by way of comforting power to make rules
| touching the mode of taking evidence.
In section 81 authority is conferred upon the
4
the forms of writS and other process, the mode OF
framing and filing proceedings and pleadings.
OF taking and obtaining evidence. etc, ETC., in
| suits in equity and admiralty. In this section
! II will de noticed that the power TO prescribe
the mode of taking and obtaining evidence is
Specifically conferred, whilst in section 91S,
under which it is claimed the same power was
| conferred>upon the distr ct and circuit courts
| all mentiono0t the mode OF taking and obtain
| ing evidence iS4Qmitted, and this is the dStn-
gushing feature intheSe two sections so far as
| granting of power is concerned.
| hold that congress Thought it necessary, by |
| specific mention, to grant the supreme court
| the power touching matters OF evidence
| and conclude that congress did
not believe the other terms would confer the |
power Bearing this in mind, we will now
look at the next section, viz. 91s This is the
section that 1t is c0ntended, cOnferS upon this
court authority to make rules Nos. ! and 10. |
The reply is. congress withheld the very power
commended for, or, in other words, declined to
give it by leaving out of this section the words
deemed necessary In the preceding section to
confer this power on the supreme court
We are not TO assume that words of a statute
are unnecessary; and hold that, if necessary
to be used in section 917, these same words, or
words of same import, were necessary to con- |
fer the same power in section 9IS. l conclude |
that congress intended to confer power upon |
the supreme court which they purposely with |
held from the district and circuit courts There
was no necessity for any rules upon the sub |
ject the law of section S61 had secured a Vau- |
able right, with the two exceptions provided |
for. 1t is again urged that section 914 gives
| the right; that this section was enacted in |
sections S61, 1858 and 866 were enacted True
| but since 1872 all the laws have been revised
and we have now the revision of 1875, contain
ing all those various sections, and they should |
| be construed as one act. This section, 914, |
provides that 1.-The practice, pleadings, ETC.. III
cases other than in equity and admiralty shall |
conform. as near as may be, to the practice |
pleadingS, etc, of the state courts. 1t is |
claimed that the word practice is broad |
enough to include the mode and manner of /
taking dispositions. If this be so, then an |
oyher exception has been ADDED to section s61. |
Unless congress intended by the term practice, |
as used in the law, to engratt an additional ex |
ception upon section S6l, it should not have !
that Interpretation, as the taking of testimony
by deposition is in derogation OF common /
right.
This brings us again to the consideration of |
the word practice, as used In the laws of |
congress. AS has been stated congress L
Thought it necessary when comforting power
upon the supreme court to make rules govern /
ing the courts of admiralty and in equity /
causes, to not only confer the power to regu--
late the whole practice in those courts, but
also by specific terms to provide that it might |
provide the EN-, mode OF taking NJ and obtaining
sity for this, as the law did not fully provide
the mode and manner of so doing, and if the |
power to regulate the whole practice did con-
Ter the right commended for, then the specific
power to ''prOyide for the mode of taking and |
obtaining evidence, found in the same section,
viz: section 917, was SuperfiuouS. L conclude
therefore, that the word "practice' does not |
confer the right cOntended for. And when, in
this connection, we consider the provisions of
StCIlOU 80. MutTt Illt NOIu pTdCllCt Is uScu,
that it has no larger Specification than in the
section Immediately preceding it. And in sec
ton 91S the authority is not given to prescribe
the mode OF taking and obtaining evidence
/ c0ncud also that the word practice as |
used in section 914 has no broader Significance |
than when used in section 9l7 or 9lS. There is
an obvious reason for this, as provision was
made for the taking of evidence in the circuit
and district courts, with the exceptions con-
tanned in sections 1853 and S66.
What authority or control would this court
have over a person to whom commissioner |
that it had not empowered TO take the depo-
sitOn? Could the courts of the United States |
punish witness for perjury committed before
an officer not authorized to take dispositions to
be used in the federal courts? The answer is |
furnished by the question. Uniformity in the
mode and manner of taking evidence is de-
sirable, and by proceeding under the act of
congress this end is attained On the other
hand the modes would be as different as the
different state statutes upon the subject. In
the case of Bell VS.. Morrison q Peters, page
351, in speaking upon the question of depOsi-
lions the court says when evidence is sought to
be admitted contrary to the rules of the COM
mon law something more than a mere pre- /
sumption should exist that 1t was rfghtfully
taken
Judge Blatchford says Sec IA, ''Blatchford's
Circuit Court Reports, " page 102, at may well
be doubted whether there is anything in sec
ton 914 which applies to the subject of the evil
dence of witnesses, either as to its character |
competency or the mode of taking it. The ex-
preston practice, ETC., is well satisfied without
introducing in it the subject of evidence etc.
The same view of the law is taken by Judge |
l,lOdIe. VINO Judge rec. 1
Federal Reporter, page ia In the case of
Sage VS.. LouSky, Judge Swing holds the same
doctrine. Other authorities might be cited
that sustain this view of the question, but it is
deemed unnecessary.
The statutes of the United States have pro-
vided for the mode and manner oftaking depo-
sitiOns. In the case of the Connecticut Mutual
Life Insurance company vs.. Schaffer (see "a |
A ito, page 458), Mr.. Justice Bradley SAYS:
',rhe laws of the state are only to be regarded
as rules of decision in the courts of the United
States where the constitution, treaties or stat
ntes of the United States have not otherwise
provided. When the latter speaks they are |
controlling. There can be no doubt
that it is competent for congress to declare the
rules of evidence which shall prevail in the
courts of the United States, not affecting the
rights of property; and when congress has de-
clared the rules, the state law is SILENT
/ am not unmindful of the decision of Mr. |
Justice Miller in the case of Flint VS. the board
of commissioners, 5 billions, CT CT. reports, |
page 4S1. This case arose in the state of Kan
sas, and the decision is very brief. The ques-
ton in that case was whether the notice and
certificates were sufficient. That is not the
question here. The learned judge in that case
remarks, 'that the act of 1872 is broad enough
to sanction the practice where the local regl-
latiOnS do not conflict with any special prOvf-
sion OF the act of congress. This decision was
made in the state of Kansas. and in order to |
understand the import of the same the laws of |
Kansas should be seen i'll order to ascertain
whether the point in question here could or did /
arise in the case referred to. By reference to
the laws of Kansas (See revision of 1859 page
1876 section $685. This section provides that s'any
court of record of this territory, or any Judge
take dispositions within or without the terri
tory. The commission must be issued to /
person. or persons to be named therein.
So felr then, as the question now to be deter L