Smith v. International Mercantile Co.

CROSS, District Judge. The plaintiff has served upon the defendant written interrogatories, to be answered by him and to be used on the trial of the cause. Presumably they were propounded under au [787] thority of section 140 of an act of the Legislature of the state of New Jersey entitled “An act to regulate the practice of courts of law” (P. L. 1903, p. 537), which provides, in substance, that either party may submit interrogatories to the other concerning matters material to the issue, that written answers shall be made thereto within 30 days, and that the answers shall be evidence in the cause if offered by the party proposing the interrogatories, but not otherwise. Motion has been made to strike out these interrogatories, on the ground “that the service of said interrogatories was not warranted by the acts of Congress constituting United States Circuit Courts, nor by the practice or procedure of the said court.” We deem it unnecessary to go into any extended discussion of the proposition, since it is well settled that such practice is not permissible in the United States courts. We do not understand that there is any question made that such interrogatories could not have been submitted, or the answers thereto given in evidence prior to the statute passed March 9, 1892, 27 Stat. 7, c. 14 [U. S. Comp. St. 1901, p. 604]. The case of Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117, is decisive of this point. The act of Congress of 1892, above referred to, has not enlarged the power of the court in this respect. In Hanks Dental Assn. v. Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989, Chief Justice Fuller, speaking for the court, says, with reference to this act, that: “It does not purport to repeal In any part or to modify section 861 [U. S. Comp. St. 1901, p. 661], 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, [U. S. Comp. St. 1901, p. 684].” Farther on in the opinion he fays» “That the courts of the Tbiítoü St ¡des are not given discretion to make depositions not authorized by federal law, but, in respect of depositions thereby authorized to be taken, ibqv may follow tbe federal practice in the manner of taking, or that provided by the state law.” National Cash Register Company v. Leland, 94 Fed. 502, 37 C. C. A. 372, and Despeaux v. Penn R. R. Co. (C. C.) 81 Fed. 897, are to the same effect Other cases might he cited were it necessary, but these seem to give a clear exposition of the object and effect of the act of 1892, and, in view of the exposition so given, we are thrown back upon, the decision in Ex parte Fisk, which controls the case now under con side, i ation. Plaintiff’s counsel contends that these interrogatories should be treated as ⅛ the nature of a bill for discovery, and as simplifying the praciic. i i that respect. A reference to the opinion in National Cash Regia ⅛ ; Company v. Leland, however, shows the contrary to be the law. He also suggests that the motion to strike out the interrogatories is premature, or, rather, that no objection can properly be made in. the matter until the answers to the interrogatories shall be offered in evidence; but this cannot be so, since, if the submission of the ink: . _ ;atories is unwarranted, the defendant may wholly disre [788] gard them. If he should refuse to answer them, he could not be punished for contempt, and, if such an attempt were made, he could avail himself of the remedy adopted in Ex parte Fisk. The .interrogatories will be suppressed.