First National Bank of Chicago v. Graham , 175 Mass. 179 ( 1900 )

Lathrop, J.

We see no ground for holding that the Superior Court had jurisdiction of the petition which has been brought by exceptions to this court. The Pub. Sts. c. 169, have no application. Whether a commissioner appointed by another State to take a deposition of a witness in this Commonwealth can be considered a “ tribunal ” within the meaning of that word in the St. of 1883, c. 195, entitled “An Act to enforce the attendance of witnesses before special tribunals,” it is unnecessary to consider, for if he be such a tribunal, the application must be made by the tribunal to a justice of the court, and not by the petitioners. So, under the St. of 1898, c. 374, entitled “ An Act relative to the giving of testimony by witnesses before special tribunals,” the application must be made by the “ magistrate or tribunal.”

The matter having been thus provided for by statute, we are of opinion that the remedy given is exclusive in a case of this kind, where it is sought to take a deposition here under a commission issued by a court in another State. The commissioner in such a case is an officer of the court issuing the commission, and if he neglects to perform his duty, the remedy is for the court where the action is pending to appoint another commissioner.

The petitioners contend that the petition may be treated as a bill for discovery; but the entire framework of the bill shows that it is not a bill for discovery, but an application to compel a witness not a party to the proceeding in Illinois to answer interrogatories under a commission issued in that proceeding by a ■ court in Illinois.

The result is that the decree of the Superior Court must be reversed and the petition dismissed. So ordered.