Frost v. Barber

173 F. 847, 1909 U.S. App. LEXIS 5918

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: October 6, 1909
• Status: Published

Opinion

LACOMBE, Circuit Judge.

The federal practice does not permit examination of a party before trial. Hanks Dental Ass’n v. International Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989. The object of section 863, Rev. St. (U. S. Comp. St. 1901, p. 661), is not to enable a party to ascertain, in advance of the trial, what will be the testimony of some particular witness, but solely to secure him against going to trial without the testimony of every witness whom he believes he should call, or examine.

This object will be attained in the present case by denying this application, with the proviso that, when the cause is called for trial, the witness, who is the plaintiff, shall be present in court and within the reach of a subpoena, and that if he should not be so present the trial be postponed long enough to enable the defendant to take his testimony,, wherever he may then be.