Wenham v. Switzer

48 F. 612, 1891 U.S. App. LEXIS 1633

• Court: U.S. Circuit Court for the District of Montana
• Decided: November 23, 1891
• Status: Published

Opinion

Knowles, J.

The defendant moves to strike from the files the depositions taken on the part of complainant in the above cause, because not taken within three months after issue was joined therein. There seems to be no dispute but that the deposition was not taken within three months after that date. The cause is one in equity. A portion of rule 69 in equity, prescribed by the supreme court, reads:

“Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing.”

It seems under the decision of Fischer v. Hayes, 19 Blatchf. 25, 6 Fed. Rep. 76, when proofs are not taken in proper time they may be filed under certain conditions nunc pro tunc. But no motion of that kind has been made in this case, and I do not know that the extenuating causes which would allow this exist. Under the above rule there seems no discretion in this court hut to grant the motion of defendant. It is therefore granted, and said depositions are hereby stricken from the files.