Sturgess v. Weed — 13 How. Pr. 130

Majority

p. 130

SUPREME COURT.

Joseph Sturgess agt. Thurlow Weed.

Headnote

A motion for a commission must be made in the district in which the action'® triable, or in a county adjoining that in which it is triable. The Revised Statutes and the judiciary act, in reference to such a motion, are inconsistent with the 401st section of the Code, and the latter must prevail.

At Chambers,

Aug., 1856.

Motion for commission.

The defendant moved for a commission to examine witnesses in a foreign state. The venue in the action was in Monroe, and the motion was made before a judge in Albany. It was objected, on the part of the plaintiff, that the judge was not authorized to hear the motion.

Amos Dean, for plaintiff.

Wm. Barnes, for defendant.

Under the provisions of the Revised Statutes, any justice of the supreme court, or any circuit judge

p. 131

inight grant an order for a commission. By the judiciary act of 1847, the same power ivas conferred upon the justices of the present supreme court, and also upon county judges. (See 2 R. S. 393, § 12—Sess. Laws, 1847, p. 640, § 15.)

It is insisted that these statutes are still in force, and that any justice may now grant an order for a commission, without regard to the place of trial. In this, however, I think the defendant’s counsel is mistaken. He applies for an order that a commission issue. Such an application is a motion: and the Code declares that motions, when made upon notice, shall be made within the district in which the action is triable, or in a county adjoining that in which it is triable, {See Code, §§ 400, 401.)

By the 468th section of the Code, all statutory provisions inconsistent with that act are repealed. The provisions of the •Revised Statutes and the judiciary act, so far as they relate to the place where a motion for a commission may be made, are inconsistent with the 401st section of the Code. The former authorize the motion to be made anywhere in the state. The latter only authorizes it to be made within the district, or in a -county adjoining the place of trial. The latter provision clearly must prevail.

This motion cannot be granted. It is not made within the district in which the action is triable, or in the county adjoining that in which it is triable. (See Dodge agt. Rose, 1 Code Rep. 123 .)