(Circuit Oottrt, D. Montana.
DBPOSITIONs-STRIKING I'ROM FILES--TIME 01' TAKING.
Under Equity Rule 69, providing that "three months, and no more, sball 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." a deposition not taken withm three months will be stricken from the files when no motion bas been made to ilie it nwnc pro tunc, and no extenuating circumstances are llhoWJ1, ,
In:IJ}quity. Suit by A. A. against ,William S. Switzer. Heard on motion to strike depositions from, the files. Motion granted. Rbbi'lison Stapleton and Word Smith, for complainant. Aaron H. Nelson, for defendant.
J. The defendant moves to strike from tile files the depotaken on the part of complainant in the above cause, because not taken within three months after issuewasjoined 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 ipequity, prescribed by tile supreme court, reads: "Three months, and no more, shall be allowed for the :taking of testimony afte,r tb,ll! cause is at issue, ,unless the court, or a judge t1:lereof. shall, upon special by either, party, enlarge the time; and no, testimony taken after such period shall be allowed to be read in e'Vidence at the hearing." It seems under the Q,ecision of fischer v. Hayes,19 Blatchi. 25, Rep. 16,,)':hen proofs ar.e not taken"in propertirne they may be file\l under certajn conditions nunc pro tum:. But no motion qf th,at kind has this an,d I do not know that the extenuating causes which w:ouldallow thise:;ist.· Under. the above rule there seems 110 discourt but. to the of del'endant.. It is therefore. and .said depositions are hereby stricken from the files.
(01rcu-tt O(YUrt, S. D. New York. January 8,1892.)
4'froNOTION.-AoTION AT LAW-ApPEAL-STAY OF PROCEEDINGS.
The defendant in an action upon a judgment which was void for want of service was enjoined from setting up the invalid,ity because, 'While procuring a discharge in bankruptc.v. be obtained substantial benefits by contending that the judgment wall valid. Held, that he was' ·not entitled to a suspension of tile tion or to a stay of in that aotion an appeal from the inJunction decree, since, in case of reversal, the court would so mould its judgment, should the plaintiff obtain· one; in the ·action at law commenced by her as to allow defendant the full advantage of his defense.
In Equity. On motion by defendant to lluspend the operation of an injunction granted herein (44 Fed. Rep. 532) pending appeal to the supreme court. Joseph H. Ohoate and Thaddeus D. Kenneson, for the motion. Anson Maltby, opposed.
COXE, J. I have read all the papers and briefs. A large portion of defendant's brief is devoted to the discussion of propositions which have, heretofore, been decided adversely to him. Debate on these questions is closed, so far as this court is concerned. The situation does r.ot seem complicated. If the deC,ree herein is reversed, on the merits, t}je complainant cannot recover at law; if affirmed, it is probable that she cal). recover. In view of the possibility of an affirmance she should be in a position to enforce her rights speedily. The defendant, by refusing to enter int.o a Iltipulation by which all the questions in controversy could be determined in one action, has made the suit at law necessary. There can be no reason why that suit should not progress, at least, so far that the complainant will be secure if she finally succeeds. The defendant is apprehensive lest he may lose the right to a!>sert the invalidity of the California judgment in case the appellate court holds that he is not topped. Of this there is no danger. The court will see that the fendant is protected. Even if the action at law should proceed to trial, judgnlentwill be permitted only on terms which will fully guard the defend ant's rights. At present there is no reason for suspending the operation of the ordinary machinery of the law. This conrt has held- that the defendant shall not assert the invalidity of the California judgment. H would be an inconsistent if not an absurd proceeding to permit the difend ant to 'do what it has solemnly adjudged he should not do. When the decree of this court is reversed, and not till then, can the defendant assert thatthe jUdgment "is not valid and does not still stand of record;" A stay'maYl1ever be necessary. When it is it will be granted, but in. such a way as to protect the complainant. The·defel1dant in asking for a suspension or even for a stay is making an extraordinary request of the court. If unusual favor is granted now it must be on cOQditions. If herproceedillgs at law are stayed the least the complainant has a right to ask is that the defendant speed this cause or give security for the The orders signed are calculated, I think, to make views operative.
(Cf/rell/lt Court. D. Ma&8ach,u8ettIJ. January
BVJDBNOB-WRITTEN CONTRAOT-CONTEMPORANEOUS WRITING. .
A person depositing money in a bank accepted from the cashier a oertiftcate 01 deposit, which lI\ade no mention of interest, but with a verbal agreement that in'Wrest should' be', paid. The ,cashier at Same time indorse4 a memorandum of the rate of interellt on the ,stub from which the certifl,cate wIMJ taken. Held, that the stub should be read with the oertiftcate. ,as evidence of the entire contract.
In Equity. Suit by EllhuThomson against Thomaa' P. Beal, as receiver of the Maverick National Bank, to recover interest on a certificate of deposit. Heard on demurrer to the complaint. Ovetruled. 'Simon Davis, for complainant. Hutchins & Wheeler, for defendant. CoLT, I. This demurrer raises the question the defendant Ilhall pay the complainant interest upon a certaip. certificate of deposit. From the allegations in the bill, it appears that the complainant, on September 16, 1886, deposited in the Maverick National Bank, of which the. defendant is receiver, the snm of $4,800, and received a certificate of deposit as follows:
MAVERICK NATIONAL BANK.
84.800.00. BOSTON. Sept. 16. 1886. Elihu Thomson has deposited in this bank forty-eight hundred dollars. payable to the order of himself on return of this certificate properly indorsed. A. C.JORDAN. Teller. E. H. LOWELL. Asst. Cashier. No. 83,455.
At the time of the deposit and receipt of the certificate, the cashier agreed verbally to pay the complainant interegt at the rate of 21 per cent. per annum upon the return of the certificate properly indorsed, and at the same time the cashier made a memorandum of the agreement on the stub or margin of the book from which the certificate was taken, as follows: Date. Deposited by Elihu Thoml\on.
$4,800.00. Sept. 16. 1886.
The general legal proposition advanced by the defendant in support of the demurrer, that parol evidence cannot be introduced to contradict or vary the terms of a written agreement, is well settled, and requires no citation of authority. But the question here prpsented is whether the certificate of deposit, which does not in express terms mention any interest, is to be considered as alone representing the entire contract in writing, or whether such certificate should not be taken in connection with the written memorandum made at the time on the stub of the bank's book from which the certificate was taken. In taking both writings together as constitnting one contract, we are not seeking to add to or vary the terms of a written