EX PARTE FISK, 113 U. S. 713 (1885)

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U.S. Supreme Court

Ex Parte Fisk, 113 U.S. 713 (1885)

Ex Parte Fisk

Argued January 6, 1885

Decided March 2, 1885

113 U.S. 713


The principle that in actions at law, the laws of the states shall be regarded as rules of decision in the courts of the United States, § 721 Rev.Stat., and that the practice, pleadings, and forms and modes of proceedings in such cases shall conform as near as may be to those of the counts of the states in which the courts sit, § 914, is applicable only where there is no rule on the same subject prescribed by act of Congress, and where the state rule is not in conflict with any such law.

The statute of New York which permits a party to a suit to be examined by his adversary as a witness at any time previous to the trial in an action at law is in conflict with the provision of the Revised Statutes of the United States which enacts 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." § 861.

None of the exceptions afterwards found in §§ 863, 866 and 867 provides for such examination of a party to the suit in advance of the trial as the statute of New York permits.

Page 113 U. S. 714

The courts of the United States sitting in New York have no power, therefore, to compel a party to submit to such an examination and no power to punish him for a refusal to do so.

Nor can the United States court enforce such an order made by a state court before the removal of the case into the circuit court of the United States.

Where a person is in custody under an order of the circuit court for contempt in refusing to answer under such an order, this Court will release him by writ of habeas corpus on the ground that the order of imprisonment was without the jurisdiction of that court.

This is an application on the part of Clinton B. Fisk for a writ of habeas corpus to be directed to the Marshal of the Southern District of New York, in whose custody the petitioner is held under an order of the circuit court for that district.

The history of the case which resulted in this order, so far as it is necessary to the decision of the matter before us, may be briefly stated as follows:

Francis B. Fogg brought suit in the supreme court of the State of New York against Fisk to recover the sum of $63,250 on the allegation of false and fraudulent representations made by Fisk in the sale of certain mining stocks.

In the progress of the suit and before the trial, the plaintiff obtained from the court the following order:

"Ordered, that the defendant, Clinton B. Fisk, be examined and his testimony and deposition taken as a party before trial, pursuant to sections 870, 871, 872, 873, etc., of the Code of Civil Procedure, and that for such purpose he personally be and attend before the undersigned, a justice of this court at the chambers thereof, to be held in the new county courthouse, in the said City of New York, on the 31st day of January, 1883 at 11 o'clock in the forenoon of that day."

A motion to vacate this order was overruled, and the judgment finally affirmed by the Court of Appeals.

Thereupon the defendant appeared before the court and submitted to a partial examination, answering some questions and objecting to others, until, pending one of the adjournments of the examination, he procured an order removing the case to the circuit court of the United States.

In that court, an order was made to continue the examination before a master, to whom the matter was referred. The defendant

Page 113 U. S. 715

refusing to be sworn and declining to be examined, he was brought before the circuit court on an application for attachment for a contempt in refusing to obey the order.

Without disposing of this motion, the circuit court made another order, to-wit:

"It is hereby ordered and adjudged that the motion to punish the said defendant for such contempt stand adjourned to the next motion day of this court, to-wit, on the 28th day of March, 1884."

"It is further ordered that the defendant Clinton B. Fisk, be, and he is hereby, directed and required to attend personally on the 14th day of March, 1884, before the Honorable Addison Brown, one of the judges of this court at a stated term thereof at his chambers in the post office building in said City of New York at eleven o'clock in the forenoon of that day, then and there, and on such other days as may be designated, to be examined and his testimony and deposition taken, and continued as a party before trial, pursuant to section 870 et seq. of the Code of Civil Procedure, and for the purposes mentioned in said order of January 12, 1883, and February 12, 1884, heretofore made in this action."

The defendant appeared before the court in pursuance of this order and, stating that he was advised by counsel that the court had no jurisdiction to require him to answer in this manner to the questions propounded to him by the counsel for plaintiff, he refused to do so. For this, on further proceeding, he was held by the court to be in contempt and fined $500 and committed to the custody of the marshal until it was paid. It is to be relieved of this imprisonment that he prays here the writ of habeas corpus.

Page 113 U. S. 718

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