UHLE 11. BURNHAM:.
729
is the substitute, for notice; and the proceedings taken in conformity with such request and the provisions of law are not subject to the objection of being wanting in "due process oflaw, " for lack of notice to, or an opportunity of hearing by, the petitioner. Aside from the fact that the assessments complained of, or two of them, at least, ,were made at the special instance and request of complainant, and other owners of property abutting on the improvements, it appears that the city of Cincinnati is now proceeding by civil suit in the state court against complainnnt to collect the assessments in question. To that suit complainant may interpose any and all defenses going either to the validitY' or regularity of said assessments. Said suit gives him a full opportunity..to be heard, and affords him the privilege of presenting every objection that can possibly be made, either under the constitution of the United States or under the constitution and laws of Ohio, to the validity of the assessments. It cannot be questioned that the judKment which may be rendered against complainant in said suit will constitute "due process oflaw." , Whether complainant is personally liable for the assessment made for the improvement of Grand avenue betore he became the owner of the property abutting thereon, is not a Jederal question. If he or his property is held liable fQf that assessment, he, no doubt, may look to his grantors for indemnity under the covenants of their deed. In the foregoing respect, the present case is essentially different from that of BcOtt v. Oily oj Toledo, 36 Fed. Rep. 385. IUs not properly controlled by the opinion in. that case, but irs controlled by the decision of the state and supreme courts in the case of OIYN"Jj v.OampbeU, 3 Wkly. Cin. Law.Bul. 174, cited by counseLfor respondents, which presented the same questions,. and under substantially the same state of facts. The conclusion of this court is that complainant's bill should be dismissed, with costs to be taxed. and it is, accordingly so ordered and decreed.
UHLE
et al.
'11.
BunNlIAM: et 01.
(Circuit Court. S. D. Nt:rJJ :t+"ork. December 81, 1800.)
Failure to ma1l;:e a timely motion to suppress a deposition is a waiver of any Objection as to the manner of taking it. 2. S.AMIlI-NOTICII OF TAKING. . Notice under.Rev. St. U.s. § 868,. that plaintiff will proceed to take depositions of certain witnesses in three different cities on the same day, is not suchreasoilable . notice as the statute requires, and: such depositions should be suppressed. ' 3. SAMIli. Where de.fendants· counsel avpears and ob:iects to the taking of the depositions on the ground that"theIiotice is unreasonable, the fact that he afterwards pro. oeeded to cross-examine the witnesses is not a waiver· of the objection· .. S.um.. , It is not an answer to a motion to lIuppress such depositions that'defendanta have given'. similar notice of intention: to take depositions. i ;' ' : . , ;
1.
DIllPOSITION-'-":HOTIOXTO SUPPRIllllll-'JW.uvIllR OIl'OBJIllOTIOXS.
DDERAL,REPORTER ,vol.
44. I"
'At Law. For'motion to remand,see 42 Fed. Rep. 1. Oharlea Putzel, for plaintiffs. Elihu,Root, for defendant.
;,LACOMBE, Circuit Judge. As this case ,will be on the trial calendar for JfiDuary 5th, and both sides are solicitous that the motions now underconsideration be promptly disposed of, a brief memorandum is all that can be filed with this decision. ,(a) The motion and the counter-motion for production on the trial of the books and papers of Jules'Arbib & Co. were practically agreed to by ,both sides upon the argument. An order may be taken requiring both parties to produce, on the trial, all such books and'paverswhibh in: their pOssession, or under their control, at the time of the service ofinotices ofthesemotions, or which have since come into theirposilession or control. :(6) The motion to suppress depositions. No such motion is made as to the depositions of the witnesses examined in Kansas City, nOr as to one,:ofthe witnesses(Charles Nechter) examined at Chicago. By 'not making a timely motion to suppress, the defendants must be deemed to have, waived any objections to the manner of taking the testimon,' those1witnesses; Motion is made, however, as to the other Chicago wit. neS8, (Pilotte,) and as to the deposition taken in St. Louis. It appears that, on November24th,plaintiffs' counsel ser\"ed a notice under section 863; Rev. St.U; 8., that he would, on November 29th, proceed to take the depositions of certain witnesses at St. LOllis, Mo., and would also, on the same day,proceed to take the depositions of certain other n.as at Ch:ieago, Ill. Under the same section he also gave notice, on November 24th, that he would proceed to take the depositions of various 'witnEissesatKansas City, Mo;, on November 28th. On the last· named day the examination of was begun in Kansas City, and such examination was actually in progress on November 29th; in fact, it was not completed till some time subsequent to December 6th. Motion to suppress the depositioristaken at Chicago and St. Louis is now made, upon the ground that, under the circumstances, no such reasonable notice as the statute :requirl'ls :wasgiven.The motion should be granted. The practice pursued was 'wholly irregular. The method of taking testi:tn,ony depositipn,,a;llowed by section 863, is a convenient one; and when, for any reason, greater elasticity in conducting an examination than a commission with written in;. is it is a useful substitute' for the But it was never intended by the framers of that section that a party· might .· his8,dversa:ry, perhaps at· ellormous'co13t; torelain and ftilly instrpct separate counsel in a dozen different cities. :Moreover, personal might well be necessary to secure, by. suggestions proper crosa.e;aniinatio;n.aa' would prevent:a of justice. Nor could 'hej in many cases, determine,in advance of the a attendance mIght be maSt requ,Ired. . The party takmg
were
131 ,pr£\pnred :written, questiions, 1he intrust the to or even to the offii:'43rtaking the sho{lld UGt,be flan4tiQned 'by:the,cQurt; it grossly ,Whoever,tlooks, to: avail ofsEl{}ti.on 863 must sO:l1egulate,hisnotipe,thaLthe party and his mll-Y be able ,w at the place and time ,entirely, llnhampered ,by other wbiohne: himself upon waived the objection. Both at St. Louis and at Chicago they appeared,by. the p'U;rposr.",and objected, ihe, express ground that, ,the Iiotice ,given was That, 'andeav911ld, as best be could, tocross,exaIt\ine is immaterial. The!plaintiffs' Wll.l! duly notified that his,practi<1e waaJtregular, before he began 1Aw.kEl the testimony" and if going on, intheJace of the opjmtiRP,; he, did so at his own risk. . None of the cases . his contention that .theobjection was waived because in ·noQe of them was the obJection"spe. before the dire<;:t Moreover, in n1any oftnem, the objections were and. dealt with matters of mere 191:,lXl; thEl9bjection here taken and fundamental. Nor is it answer to the defen,dants .have;themse1ves giyen a. similar notice for taking ;tp,e depositions of witnesses in Kansas PJld in Louisville, Ky., 2Qthand Blat; respectively. It ",mbetime euo1,lgh to dea1with those dElp.ositions when they reach ,.If the examination in the plaQe shouldoontinueso long as to it unreasonable to expect theaame counsel and· the same party to to the other, then the: 4efenda,nts' practice wiU be as irreguthe plaintiffs' has: proper objection and motion their testimony will probably share the same fate as that of their adversaries. (c) The motion to be relieved from the stipUlation to try the case on January 5th is more difficult to dispo,se of.. 'J;'he. conflicting affidavits of both sides are numerous and 'lengthy. One of the plaintiffs is here from Saxony waiting for the trial, anq. it will undQubtedly be a hardship to him to allow a further postponenlent. It is to be borne in mind, of the is to taken' olty,-a fact wnIQhmust have been known to hIS counsel from the beginning of the case; and that, although isauewasjoined the motion to,retn.and to the state court decided in May, and note of issue for the October term was filed in September, no steps were taken by the plaintiffs to secure any of this testimony until the latter part of November, except the issuing of a commission to which was evidently intended to obtain as the plaintiffs' counsel felt able to pres,s fpr ,trial without waiting for its return. Had the testimony of the Missouri wit· J1.6ll8e,8 ,been taken a,D;1oqtp npw, theaubject Of discussion, would the court the .deQ:1 l§
by
llamelerhbal'1'8.slf;
732
FEDERAL REPOR'XER,
vol. 44.
fendants' laches in presenting their side of the case would be more apparent. In view, therefore, of the fact that when the case was first reached for trial the defendants were under a stay, (till the return of the Bremen commissionj) that their counsel 'Was then. actually engagedj and that the voluminous Kansas City depositions were then being taken, presumably requiring the attendance of party as well as counsel,-1 am inclined to grant the motion to relieve the defendants from the stipulation, leaving the trial judge, when the case next appears on the day cale,ndar, to make such disposition of it as a just regard for the rights of both parties may then suggest. (d) The motion to amend the answer. Under the pleadings as they stand, the defendant seems to be sufficiently protected, except possibly as to the defense of payment. If the plaintiffs on the trial show sales (and contracts for sale) of their goods to the defendants, through Jules Arbib & Co. and Auffmord & Co., 8S mere selling agents, and it fu:rther appears that the defendants were chargeable with knowledge that these firms were such agents only, then it would seem that they should have availed of that knowledge earlier in preparing their defense, and should not have waited so long before moving to amend. If they were not so chargeable, or if from the complaint taken, in connection with the transactions which form the subject-matter of the action, they were fairly warranted in assuming that it was not for the purchases from those firms that they were called upon to account, the court can, upon the trial, allow such amendment as will enable them to show that those purchases were paid for. In order, therefore, that an amendment at this stage of the case may not be availed of as an excuse for further postponement, I shall deny the motion without prejudice to its renewal on the trial should the evidence warrant it, and without prejudice to its renewal as a chambers motion should there be 8. further adjournment of the
CHASE 11. UNITED STATES. I
(Otrcuit Court, D. Indiana. November, 1890.) CLAIMS AGAINST UN1.TED STATES-AUTRORITY-POSTHASTER GENERAL.
Under Act Congo March 2,1861 1 §10, (12 St. at Large 220,) providing tbat"nocon· tract or purcbase on behalf of the United States sball be made unless the same is. authorized by law, or is under an appropriation adequate to its fUlfillment," th& postmaster general is not empowered to lease on bebalf of the government a building for a post-oftlce for the term of 20 years, and such lease, taken by the postmaster in May, 1870, cannot be enforced against the government after it has vacated the premises,
At Law. A. O. Harris, for plaintift'. Smiley Ohambers, U; S. Atty. GRESHAM, J. OnJllly 17, 1866, John K. Snider to the United States fora term of 10 years a lot, and building standing thereon, in th&