(Oircuit Oourt,lf. ;J).l/tinoia. .february 7, 1887.)
DEPOSITION-REFUSAL OF WITNESS TO SIGN-REMOVED. CASE.
In a cause begun in a state court. and 'subsequentlyremoved to a federal previous to removal by a short· court, the deposition of a witness was hand writer. Before the short-hand notes were written out for reading to the witness and signature by him, according to the requirements of the state statute. the cause was removed,. :Then the witness refused .to 'sign his deposihad, no jurisdiction over the taking of the tion. Held, that the federal deposition, and could not comp,e!,the witness to sign i t . ,
Moses Tenriw,' for complainant. Newman, for witness.' .
BLODGETT"J., (oraUy.) . a some,whatnovel question. The suit is a bill inequity; the state court, and after an ha9-. been filed, but 'befoI'(l an issue had made by filing a replication, the complainant,6nli6til\e duly as far as I ean see. i.n conformity with in that tegard, proceeded to in what is ,take the deposition o(a<witnef;ls. ,The' deposition now a common mode of procedure 'in this city, by a short-hand writer, ulid, after the witness had been interrogateii on the part of the complainlint, and cross-examined by the defendant, the matter was suspended out the deposition. After this ,until the short-hand writer could so far closed, ,and befor,ethe testimonywa's written out, examination the suit, on application of was removed to this court, and the record sent here. After the case had' been docketed in this court, to the: to go beforethe notary, and sign the and verify the deposition, in the mean time reduced to writing; and t;his the wHness refused, t() do, saying, ip. subE:\tanee, that he had been sqadvised by defendants'attorney. The court is now asked to compel the witness. to complete his by signing and swearing to it. . I am of opinion that this coprt. ;has no jurisdiction to enforce the proposed order, because whatever done towards taking the deposition was done while the case was within the jurisdiction of tbestate court, and before this court acquired jurisdiqtionof it. It seen:xs to me to one of those inchoate .proceedings which must fall with· the removal of the from the state courk, '.J:hedeposition was not completed under the statutes of Illinois until it read to the witness,or read by him and signed and sw()rnto by' him. Why the defendants' attorney i14vised him not to sign iUs not disclosed, and I do not think it is material, for the, purposes of question, that it should be shown. It is enough that whatever was done by the witness was done under the jurisdiction of the state court, and if that court cannot enforce it,and I have no idea that it can,-then the jurisdiction to enforce whatever remains undone io3 lost.
COTZHAUSEN 'II. ORTING.
I do ·not attach much force' to the suggestion, made in behalf of the witness, that the case was removed to this court on the application of the complainant, and that the latter, having removed his case, cann.ot it is lost by his own act, complain ofthe loss of this deposition, as it seems to me to make no difference who removed the case; but the difficulty is that this witness had not yetmade his deposition when the case was removed, and as the state court has lost jurisdiction of the witness, and he never was within the jurisdiction of this court, there is nl> power in this court to compel a completion of the deposition. The ql1estion isa novel one,' and; so far as 1 have been able to examine, with the industry of counsel to aid me, I do not find that it has ever been raised or decided. I think 'the proceeding is one which mllst be held to hav'6 fallen:betweeh· the two jurisdictions, and the inconvenience is one which must be borne as an incidellt to the right to remove cases from the state totbe federal courts,and also as an incident to the practice of taking down testimony by short-halld, to be afterwards'written out at length, and then: IC?'mp.leted by the signature and oath of the witness. The motion IS overruled.
CoTZHAUBEN "'. KERTING.
(Qireuit Oourt,':E.D. Wiaeonain. December 26, 1886.)
EQ,Ul'J'Y-lULIEF AGAINST JUDGMENT AT LAW-PERJURY-CoNSPlRACY ABD Bunl'RISil:." , ' ,
'rtis not sufficient ground for relief in equity against a jUdgment at llLwthat the :verdict was obtained by perjury; and the addition, in a bill praying such relief, of allegations of conspiracy and surprise. does not make a case for interference in equity, with ,the enforcement of the judgment.
Bill in Equity to obtain reliefagainst judgment at law. to bill. H. e. Sli:Jan, forcol)Jplainallt. G.W. Haze1J.Qn, for defendant.
DYER, J. The defendant in this bill recovered a judgment against the complainalH in the circuit court of the States for the Northdistrict of Illinois in.ap. a.ction of trespass. The suit in which the judgmentwas rendered grew out of the foreclosure by the complainant, Cotzhauaen, of certain chattel mortgages which he held upon property in the pOBsession of the defendant; and the complainant was adjudged a trespasser in enforcing· a foreclosure as to certain articles of property which it was claimed by the plaintiff in that suit were not covered by the Suit at law being brought upon the judgment in this court, the complainant files the present bill, on the equity side of the .court, to enjoin the prosecution of the action, on the ground that the