In re Washington Steel & Bolt Co.

NETERER, District Judge. A petition has been filed together with notice with the referee to take the depositions of the hereinafter named witnesses. This petition and notice to take depositions has been duly served upon the attorneys representing the trustee, and request has been made that Samuel B. King, a notary public of Chicago, Ill., be appointed to take the deposition of J. H. Osborne; that John Christ, a notary public of Coeur d’Alene, Idaho, be appointed commissioner ,to take- the deposition of C. F. Chafin of said city; and that J. W. [985] Hancock, a notary public of Spokane, Wash.,'be appointed to take the depositions of R. L. Webster and W. J. Ambrose in said city of Spokane. The petition sets out that each of these parties whose depositions are desired resides more than 100 miles from the place of trial or court in which the above matter is pending, and all except two reside out of the state. Objection is made by the attorney for the trustee to the appointment .of commissioners and the issuance of commissions on the ground that there are no provisions of statute under which the commissioners could be appointed and the depositions taken; that the section of the statute under which the application is made appertains to actions pending, while bankruptcy proceeding is a special proceeding. Section 876, Rev. St. U. S. (U. S. Comp. St. 1901, p. 667), provides: “Subpoenas for witnesses who are required to attend a court of tbe United States, in any district, may run into another district: provided, that in civil causes the witnesses living out of the district in which the court is held do not, live a distance greater than 100 miles from the place of holding the same.” ■ Section 863 of Rev. St. (U. S. Comp, St. 1901, p. 661), provides: “The testimony of any witness may be taken in any civil cause * * ‘ * by •deposition de bene esse, when the witness lives at a greater distance from the place of trial than 100 miles * * * or out of the district; in which the case is to he tried; and to a greater distance than 100 miles from the place of trial. * * * ” Section 21b of the Bankruptcy Act, as amended June 25, 1910, c. 412, 36 Stat. 838 (U. S. Comp. St. Supp. 1911, p. 1498), provides: “The right to take depositions in proceedings under this ¡act shall be determined and enjoyed according to the United States laws now in force, or such as may be hereafter enacted relating to the taking of depositions, except as herein provided, (e) Notice of the taking of depositions shall be filed with the referee in every case.” ' ■ Section 41 of the Bankruptcy Act provides: ‘ * * * That no person shall be required to attend as a witness before a referee at a place outside of the state of his residence, and more than 100 miles from such place of residence, and only in case his lawful mileage and fee for one day’s attendance shall be first paid or tendered to him.”. I think it is apparent from the provisions of the act that it was the intention of Congress to confer upon courts the same jurisdiction and power relating to the taking of depositions in bankruptcy proceedings as are enjoyed by the courts in relation to civil actions. This question is one of first impression in this court, nor is precedent presented from any of the District Courts. In the construction of statutes it is well settled that the general purpose intended to be sub-served by the particular enactment under construction is to be considered, and that all provisions of the statutes which deal with the same subject are always to be taken into account. Sections 863 and 876 were enacted prior to the Bankruptcy Act, and provide for compulsory attendance of witnesses within certain limits. The only limitation placed by section 876 was for the purpose of extending protection to the witness in not compelling him to ap“ pear except within certain limits, and section 863 afforded litigants an [986] opportunity of securing, the testimony through a commissioner. The provisions of this section were clearly extended to bankruptcy proceedings by section 21b of the Bankruptcy Act. It is contended that the provisions of section 41 required the attendance of witnesses residing within or out of the state and within the limit of 100 miles. From a consideration of the sections named, together with section 41, it manifestly appears, when the purpose intended to be subserved is taken into consideration, together with the provisions of section 863, that there was no intention to modify the powers or to limit any authority conferred by sections 876 and 863. I think that the general provisions of section 863 with relation to the taking of depositions apply to bankruptcy proceedings, and that the provisions of section 41 of the Bankruptcy Act are not an enlargement of section 863, R. S., but that it is brought by section 21 within the provisions of section 863. The following authorities, while not deciding the matter at issue, would indicate the soundness of this conclusion: In re Hempstreet (D. C.) 117 Fed. 568; In re Williams (D. C.) 123 Fed. 321; In re Robinson (D. C.) 179 Fed. 724; In re Cole (D. C.) 133 Fed. 414; Collier on Bankruptcy, p. 386. Ret an order be entered in accordance with this opinion.