PAINE V. WARREN.
set down motions for a new trial and things of that kind for hearing be· fore me, and I never decline to take part in any such questions or cases as may be presented; for it is one of the defects, as I look upori it, of the judicial system of the federal courts that there is not in every case an opportunity for review before an appellate tribunal. I think that a serious defect, and believe that it would be wiser and better if, in every case, there was a right of the defeated party to a review by some appellate tribunal; and I do not wonder that the judges in the trial of the cases befoTe them are very glad to have the assistance of an independent mind, so that there can be a consultation and a determination by twopersons,and'a division of responsibility; for no one who has not had experience in the matter can appreciate fully the burden which rests upon ajudge whim he feels that with him is the solitary and the final respon$ibility. I doubt not I appreciate. that much more than the district judge, because, the circuit justice so seldom coming into the circuit, there are multitudes of cases where the amount in controversy is such that, upon my single judgment,'must rest the fiual determination of the case. But, although there is that defect, and although the district judges can and do relieve themselves oftentimes of the burden which arises from it by calling in the assistance of the circuit judge, yet, notwithstanding, I think the other thought and rule must be regarded; and that is, that it is wiser and better that the litigation commenced before one judge should be continued, so far as practicable, before him to its close in the trial court. I felt called upon to say this. While it is a matter not directly pertinent in this case, yet is well to be borne in mind by counsel. The simple order will be that the applications will be overruled, with leave to renew them upon decision of the supreme
(Oircuit Oourt, S. D. New York. January 9,1888.)
St. U. S. 724.. .' '. The provisions of Rev. St. U. S. § 724, for the production of books, etc., in actions at law, do not authorize such production to be compelled in order to assist the plaintiff in framing his complaint. .
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That section fsnot to be construed, however, so narrowly thai production may not be obtained of documents, etc" not admitted in the defendant'sanswer, as is' the rule in chancery. A plaintiff may elect to resort to the remedy under that section, or to abill of discovery in aid of his suit at law in a proper case, at his option. ' .
On Mdtion. ,Bill of discovery. :Francis S. Tu'frier, for complainant. Charle8 H. RUsseY, for defendant.
W plaintiff commenced an acHon, by serv;ice of a summons in tQe stite·co,qrt, and, before the pleadiIlgs were served or filed, the action was removed to this court, and a motion made to compel the inspection of books to enable the plaintiff to frame defendant to allow his complaint. If the practice of the state courts as prescribed by the Code of Civil .Procedure had been applicable, the plaintiff would have been entitled to an inspection if the facts of the case were such as to justify such an exercise of discretion. But proceedings for production and and documents in this court are controlled excluinspection of Rev. St. U. S., which prescribes that production sively by section may be compelle4 Ln actions at law "in cases and under circumstances where parties might be· compelled to produce the same by the ordinary rules oi PFoceeding in chancery." Under the act of 1872, conforming the practice in the federal courts" as near as may be" to that of the state courts, the state practice fs to be followed when there is no statute of the United Statel!. regulating the particular proceeding; but when there is, the statute controls and provides the exclusive rule. Pea8lee v. Haber8tro, 15 BIatchf.472; In re Fiske, 113 U. S. 713,5 Sup. Ct. Rep. 724.. There is no practice known to a court of chancery by which a defendant can be required to produce books and documents in order to enable a plaintiff to frame his bill; and the remedy, under section 724 is limited to.causes where issue is joined. Jacques v. Collins, 2 Blatchf. 23. The practice in equity permits a motion for production to be made only after the defendant has answered, and admits the possession of the documents. Bi8clwff8hei:m v. lJrcYwn, 29 Fed. Rep. 341. But sectiol:).7.24 should not be construed so narrowly as to authorize a motion to produce only when the documents have been described in the pleadings, because in actions at law such descriptive allegations in the pleadings would not ordinarily be permissible. While equity pleadings set out to a greater or less extent matters of evidence for purposes of discovery and proof, such matters would he redundant and improper in pleadings at law. The motion to compel production was denied, as it should have been, for the reasons thus stated, and the plaintiff has now filed a bill of discovery on the equity side of the court in aid of his suit at law. If the original suit is at law, this practice is authoHzed. Colgate v. Com. pagnie Francai8e, 23 Fed. Rep. 82. Such a suit is auxiliary to the suit at law, where the defendant is not within the jurisdiction of the court, process may be served upon his solicitor, as has been done in the present Buit, pursuant to an order permitting such service. Bartlett v. The Sultan, HI Fed. Rep. 346. The defendant has appeared specially, and has mO'\7edJoset asidethe service of proCess as unauthorized, insisting that the original suit is one in equity, and the present one cannot, . therefore, be treated as auxiliary, but only as an original suit. If any such open to .the defendant when the bill filed purports to be one in aid of a pending suit at law, it is not well taken in the present case. No pleadings have yet been filed in the first action, l1<nd it is therefore impossible to determine by the usual method whether the suit is on the law side or the equity side of the court. But the cause of action set
MISSOURI PAC. R. CO. V. TEXAS & P. RY. CO.
forth in the bill of discovery is one cognizable at law. It is probably true that it is one of which equity also has concurrent jurisdiction, because the remedy there would be more adequate and complete in some respects than the plaintiff can obtain at law. It is altogether probable that the bill of discovery is bad upon demurrer, and this is perhaps the first instance in which such a bill has been filed in. aid of a suit at law where issue has not been joined in the suit at law; but this question. although somewhat discussed at the argument, is not properly here, and can only be considered when a demurrer is interposed. It has seemed proper to thus refer to and consider somewhat matters not strictly pertinent to the present motion, because of the obvious misapprehension of points of practice by both counsel, which, ifnot now corrected, may lead to further and useless proceedings in the controversy. The plaintiff has the choice at his election of either one of two courses which will afford him an efficient remedy. He can dismiss his bill of discovery and treat his original suit as an action at law,and when the pleadings are perfected and issue joined, can apply to compel an inspection and production of necessary and material books and papers in the defendant's possession; or he can treat it as a suit in equity, and frame a bill with appropriate averments and interrogatories for discovery, and if necessary, for an inspection according to the course of equity practice.
TExAS & P. Ry. Co., (Cox et tla:., Intervenors.)l
(Oircuit Oourt, E. D. Louuiana. January 2, 1888.)
CAlUUERS-NEGLIGEl'fCE-UNSAFBPLATll'OllH-WARNING BY OFll'ICBBS OJ'RoAD -REFERENCE.. . .
In a claim for damages for injuries sustained by passengers falling off a railwayplatforin, upon which they had alighted safely, and after they had been warned by an official of the railway as to their danger, the maeter di!l not rule specifically as to the effect of the warning in obligating the passengers to take greater care, but merely referred to it as being insufficient to Julfill the railway company's obligatIOn of reasonable care in respect of safe conditions. Held, that as the question as to the effect of the warninA" had not received the attention its importance warranted. the case should be recommitted to further hearing and report.
In Equity. OIl exceptions to master's report. .'\ R. M. Cox and wife filed in intervention a claim against the receivers of the Texas & Pacific Railway Company, for damages from personal injuries sustained. ..The master reported, allowing claimants 81,400. The receivers excepted to the master's report.
J. H. Kennard, for intervenors.
w. w. Hilwe.,
Reported b7 Charles B. Sta1ford, Esq;j of the New Orleans balo.