93 FEDERAL REPORTER.
words, theJ' cannot be construed usa prohibition upon receiving money 995 makes by the officers of the court. The ,'very language of this clear. It refers to moneys which may be "received by the officers" of the court. This is further made clear by the fact that the court acts alone thr()ugh its officers, and I know of no method of taking money into legal custody except by and through the instrumentality of the court's officers. It is common practice, when the court is money into jUdicial custody, to Qrder it paid to the about to clerk. His duty then arises, under section 995 above quoted, to deposit it forthwith in the registry of the court. If he fails to do so, he violates his duty, and this is exactly what Clerk Watson did. On receipt of the money in question, he was required by law to forthwith deposit it in the registry of the court. Instead of doing so, he deposited it to his individual credit in some bank where he was keeping his individual account. He thereby violated the law, failed to perform his duty as clerk, and his subsequent use of the money for his own private purposes.is but fUI,'ther evidence of his conversion of the same to his own use. ,-When the court subsequently rendered final judgment in the c;ase of Stewart v. Henry County it practically ordered this money to beI>aid to the plaintiff. The right to said money; and all legal remedies for the enforcement of the right, were thus vested in the plaintiff. It mayor may not be, as claimed by defendant's counsel (as to which I express no opinion), that plaintiff right enforceable against Henry county for has a prese'nt the payment of his The assertion of such right, if it exists, would be grossly 'itiE!quitable, and the court is not inclined to so rule this case as to unnecessarily invite such proceeding. It results that plaintiff is entitled to judgment for the penalty of the bond, with an assessment of damages in the sum of $2,525, with interest thereon from the date Of the institution' of this suit at the rate of 6 per cent. per annum. .
UNITED STATES v. SCHOONMAKER et al. (Circuit Court, W. D. Texas, EI Paso Division.
CONTINUA:NCE-SUFFICIENCY OF ApPLICATION.
April 8, 1899.)
An application for continuance by a plaintiff on account of the absence of a witness, in addition to 'showing the diligence of the party to obtain the attendance of the witness, should disclose the substance or effect of his testimony, that it may appear not only that it is material, but that it will tend to support )!laintiff's cause of action, and also that the personal presence of the witness is necessary.
On Motion for Continuance. Henry U. S. Dist. Atty. T. J. Beall, for defend:l.llts. MAXEY, District Judge. The district attorney brought this suit in behalf of the government to recover of D. ,"V. Schoonmaker and the his hond the-su Ill of $1,138;95 for the alleged failure on the part of SchoollUlaker to construct a frame cavalry stable at Ft. BUss
UNITED STATES V. SCHOO!\l\1AKER.
according to the provisions of his contract. The parties to the contract were Schoonmaker, in his own behalf, and George Ruhlen, lli!sistant quartermaster of the United States army, representing the government. The question for determination arises upon a motion made by the district attorney to continue the case for want of the testimony of Quartermaster Ruhlen. This is the third application made by the government for a continuance. The petition in the cause was filedon the 6th of March, 1897. On April 8th following, the cause was continued by agreement of counsel, and on October 5, 1897, it was con· tinued on the application of the defendants. On April 5, 1898, and again on October 5, 1898, it was continued upon the application of the government. As before stated, the government is now seeking a continuanee for the third time. The present application of the district attorney. pretermitting certain correspondence therein mentioned, is as follows:
"Now comes Henry Terrell, United States attorney, Western district of Texas, representing the plaintiff hereIn, and asks the court to continue this eause for the following reasons, to wit: .one Lieutenant Colonel George Ruhlen, chief quartermaster United States volunteers, is the chief witness for plaintiff in this cause, and his testimony is material herein, in this: That the eause of action is for a breach of contract In the construction of certain cavalry stables for plaintiff at l1't. Bliss, Texas; that the said Lieutenant Colonel George Ruhlen was, on the part of plaintiff, in charge of said construction: that, upon the breach of said eontract by defendant, the said, Huhlen, representing the United States, took charge of said work, and completed same; that he alone knows and is able to testify as to the condition of the accounts between plaintiff and defendant, and as to what balance is due the said plaintiff for said breach; that it is and has been impracticable to take the tf'stimony of the said Huhlen by deposition on account of the character of said Ruhlen's testimony, the same being a long and intricate aecount of debits and eredits, covering the construction of said stables, partly by defendant. and partly by plaintiff, and hence impossible to give the court a dear understanding of the rights of plaintiff and defendant without the personal presenee and oral testimony of said Ruhlen. The plaintiff further that he has used all diligence to secure the attendance of the said Huhlen. as appears by the following correspondence with the solicitor of the treasury: * * *. The facts in the knowledge of Oolonel cannot be obtained from any other source. That the said George Hllhleu is now stationed, by order of the war department of the L'nitpd States. at Honoluln, Hawaiian Islands. United States. The plaintiff is anxious to dispose of the case. but for rPflsons set forth cannot go to trial. This application is not made for delay, but that justice may be done. * * *"
The correspondence above referred to disl'loses that on September Hi. 18!l8, the district attorney requested the attorney general to secure, through the war department, the presence of Col. Ruhlen at the October term, 18!J8, of the court. On Reptember 27th, the war department a'h'ised the attorney general that Col. Ruhkn was on duty at Honolulu. and could not attend the eourt. On the 28th of January, 1899, the district attorne,Y applied to the solicitor of the treasllry to have Col. Huh len report as a witness at EI Paso, and in this letter it is said by the district attorney that, "* * * in order to try the case, it will be necessary to have Major George Ruhlen, U. S. army, ordered to EI Paso to testify. It is impracticable to take his testimon,r by deposition. The court has set case for first day in April of the term, and,
unless the government :is readY,he will gI'l1nt motion' to. dismiss. I tr'ust .the department' will render me promptly all aid possible·to .get this case ready. I ibc1bse copy of petition." The solicitor of the treasury, in his reply of January 31, 1899, the district attorney that he had requested the secretary of war to detail Col. Rublen to attend the trial; and; 01). the 28th of February following, the solicitorwrotefurther thattlie quartermaster general had notified him that Col. BuhIen was then stationed at Honolulu, and it would be against the interests of the, pUblic service to take him away from his ... From the correspondence, it is apparent that the district attorney has used reaso;n.able diligence, without effect, to secure the presence of' Ruhlen. But is that alone sufficient? There is nothing in the application to show to whtttRuhlen would testify, if present. For aught that appears on the face of the papers, Buhlen's testimony might disclose that the government has no case against the defendants. In other words, neither the substance nor effect of what Ruhlen would testify to is set out in the .application; and hence it is not shown that the government would be able to make out its case, as alleged, were Ruhlen'. as a witness. . The materiality of his testimony is not disclose<1:f+ The distri¢t attorney doubtless regards him as a material witness; for it is alleged in the application "that he alone knows and is able as to the condition of the accounts between plaintiff and defendant, and as t6 'what balance is due the said plaintiff. for said breach." But upon which, side of the ledger does the baIance stand? If the defendants are really indebted to the government, the application for continuance should disclose the fact, and, further, that Ruhlen's testimony would establish, at least prima facie, the cause of action. . But for another reason the application should be denied. The court is not satisfied that Ruhlen'spersonal presence is either indispensable or necessary. The district attorney insists that the court would be unable toobtain a clear understanding of the rights of the parties from the deposition of the witness, because of the fact that it would be necessary to state a long and intricate account of debits and credits, which could not be satisfactorily done except by the witness on the stand. The. reverse would be more nearly true. In order to thoroughly understand intricate accounts, they must be stated in writing; and such work may be more intelligently and accurately done by a party in the quiet and privacy of his own office. While litigants should be accorded all reasonable opportunities to prepare their causes for trial, the court is of the opinion that it would be neither right nor just to the defendants, under the circumstances of this case, to grant a further continuance of the cause. The application will therefore be denied. Ordered accordingly.
CHIATOVICH V. HANCHETT.
CHIATOVICH v. HANCHETT et at (Circuit Court, D. Nevada. April 7, 1899.) No. 634.
COSTS IN FEDEHAL COURTS-TAXATION-SUFFICIENCY OF AFFIDAVIT.
Rev. St. § 983, providing that in federal courts "the amount paid printers and witnesses * * * shall be taxed * * * against the losing party," does not require any affidavit to be attached to the memorandum of costs filed by the successful party; and where a rule of court provides for such an affidavit, and what it shall contain, an affidavit which complies with such rule is sufficient, though it does not state in terms that the fees of the witnesses have been actually paid.
On appeal from an order of the clerk taxing costs. M. A. Murphy, for plaintiff. Torreyson & Summerfield, for defendants. HAWLEY, District Judge (orally). Defendants claim, and the clerk held, that the fees of witnesses should not be allowed because there is no affidavit filed which shows that the witnesses' fees had been actually paid. Section 983 of the Revised Statutes provides that "the amount paid printers and witnesses .. .. .. shall be taxed .. .. .. against the losing party." The cost bill in thl! present case is accompanied by an affidavit, lion behalf of the plaintiff, .. .. .. that the items in the above memorandum contained are correct, .. .. .. and that the said disbursements have been necessarily incurred in the said action." It will be noticed that section 983 does not provide that any affidavit shall be attached to the memorandum of costs. Section 984 does provide for an afti· davit, as to the fees of certain officers, "that the services charged therein have been actually performed"; but the fees of witnesses are not mentioned. In the absence of any rule of court upon the subject, it was at an early day, in some of the districts, held that an affidavit ought to be made to the memorandum of costs to the effect that the witnesses' fees had been paid. In course of time, regular rules were adopted in the various circuits, declaring what the substance of the affidavit to the memorandum should be, and was doubt· less adopted in order to secure uniformity in the several districts. Rule 17 of this court provides what the affidavit shall contain. The affidavit in the present case complies with this rule. Of course, the losing party would have a right to show by affidavit, or otherwise, that the had not been paid. Rule 18 of this court provides how that may be done, and the proceedings to be taken are separate and independent from the affidavit that is required by rule 17. In the present case there is no pretense that the witne:;ses have not been paid, but the objection is based solely upon the ground that the affidavit does not conform to the language of the statute. It is purely technical, and, in the light of the rules of this COUI't, cannot be sustained. The action of the clerk in refusing to allow the fees of witnesses be· cause the affidavit did Dot in direct terms state that they 'Ihave been paid" is set aside, and he is directed to allow the witnesses' fees. In all other respects the taxation as made by him is approved.