In re Spofford

LACOMBE, Circuit, Judge. 'Although still of the opinion heretofore expressed in Arnold v. Chesebrough, 35 Fed. 16, the weight of authority in the circuit courts is so strongly the other way that I feel constrained to grant this motion. Railroad Co. v. Drew, 3 Woods, 691, Fed. Cas. No. 17,434; In re Steward, 29 Fed. 813; Johnson Steel Street-Rail Co. v. North Branch Steel Co., 48 Fed. 191; In re Allis, 44 Fed. 217. As the witness 'has been in no sense contumacious, but has declined to be sworn or to produce the books only in order to present objections which his counsel not unreasonably supposed to be well founded, the order may be in the alternative. It will, however, be made peremptory and final, if witness’ counsel so desire; and in that case I shall, by a subsequent order, stay its operation until appeal can be heard and determined by the circuit court of appeals. The supreme- court has, it is true, repeatedly held that it could not, either by appeal or writ of error, review the action of a circuit court, inflicting fine or imprisonment for a contempt (Ex parte Kearney, 7 Wheat. 38; New Orleans v. Steamship Co., 20 Wall. 387; Hayes v. Fischer, 102 U. S., 121), on the expressed ground that no appellate jurisdiction in such cases had been conferred upon it by the laws of the United States. The old common-law rule, however, — that the order of a court, whose decisions on all other questions are reviewable, is sacred, and not be inquired into, when it inflicts punishment for contempt,— seems abhorrent to the sense of natural justice. It puts the property and personal liberty of one individual practically at the mercy of another, who, being human, may presumably act, upon occasions, mistakenly, or from prejudice or passion. And it may well be that the circuit court of appeals may find in the broad grant of appellate jurisdiction to review final decisions of the circuit courts “in all cases other than those [where jurisdiction to review is conferred on the supreme court],” which is contained in section 6 of the act of 1891, sufficient warrant for holding that final orders, such as the one here moved for, may be by it examined into, reversed, or otherwise determined. The case at bar certainly presents interesting questions as to the power of a. circuit court to take testimony in equity causes outside of its own jurisdiction, and upon issues other than such as are raised by the pleadings, which have never yet been passed upon by an appellate tribunal.