Blossom v. Ludington , 32 Wis. 212 ( 1873 )

Cole, J.

This is an appeal from an order of tbe circuit court granting leave to tbe plaintiff to examine tbe defendant James Ludington before a commissioner, on written interrogatories to be settled and allowed by tbe court or tbe judge thereof, upon notice to the defendants. No issue has been formed in tbe action. The order is founded upon tbe complaint and the demurrers thereto, and the affidavit of the plaintiff, in which be states that be is informed by bis counsel and verily believes that it is important that be should examine said Ludington on tbe subject of tbe transfer of tbe mortgages mentioned in tbe complaint, for tbe purpose of amending the same, and in order to judge of the necessity of adding new parties defendant therein. It is insisted on the part of the defendant, that the plaintiff has failed in every respect to show himself entitled to such an examination before trial, and that the order appealed from is irregular and unauthorized by any statute or rule of practice.

The practice in regard to the examination of a party in a case like the one before us does not seem to be regulated by statute, nor by any general rule of court. It is enacted that no action to obtain discovery under oath in aid of the prosecution or defense of another action shall be allowed; but that a party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled to give testimony in the action in the same manner and subject to the same rules of examination as any other witness. Sec. 54, ch. 137, R. S. This provision- was obviously adopted for the purpose of abolishing the bill of discovery, and to provide a substitute therefor. By section 55 it is enacted, that the examination provided for in the previous section may be had either on the trial of the action or at any time before trial, at the option of the party claiming it, before a judge of the court, or county judge, on a previous notice to the party to be examined and any other adverse party, of at least five days, unless for good cause shown the judge order otherwise.

These provisions, it is said by the counsel for the defendant, give to the party claiming it the absolute right to examine the adverse party, either as a witness generally or for the purpose of discovery, and point out the exact way in which the examination is to be made. The statute does not contemplate that where a party is examined before the trial, such examination should be upon written interrogatories settled by the court, but that the testimony should be taken and reduced to writing as when a witness is examined in court at the trial. The order in the present case was irregular for the reason that the court had no power to control and direct the course of the examination, and to restrict it to written interrogatories settled and allowed by it. No order to obtain a discovery was necessary or even permissible, but the course for the plaintiff to have pursued was to have followed the statute, given the five days notice prescribed, and then enforced the attendance of the defendant as in ordinary cases where witnesses refuse to attend. This is the construction placed upon the statute by the counsel for the defendant Ludingion.

Now if this view is correct — if the right to a discovery is absolute, and the court has no power to control the examination by framing interrogatories or in some way restricting its limits, as was attempted in the case before us, then it is plain this statute may become the means of the greatest abuse and oppression. For an unscrupulous party has but to commence bis action, and then insist upon the examination of the adverse party for the purpose of discovery, and compel the disclosure of matters wholly impertinent to his case, and in which he has no interest, merely to gratify his malice or curiosity. And so much injustice might be done by such an unrestricted, roving examination of a party, that we have earnestly endeavored to so interpret the statute as to secure the object of its enactment, and at the same time give the court in which the action is pending some power to restrict the examination within proper limits. The statute is certainly very vague in its language— more so, as will be found on examination, than is the corresponding statute of New York, from which it was doubtless copied. It will be observed, however, that the statute abolishes all bills of discovery, but provides that a party may be examined as a witness at the instance of the adverse party, and may be compelled to give testimony in the action in the same manner and subject to the same rules of examination as any other witness. Now it seems to us that it does not necessarily follow that the party is to be examined as a witness in open court is examined, or even upon oral questions put as in case of depositions taken before a magistrate, but that if the court shall so order he may be examined on written interrogatories settled and allowed as in case of the examination of a witness upon commission. Such examination, by virtue of other provisions of the statute, ■ is taken upon written interrogatories upon a commission issued according to the rules of court. And what is there in the statute which forbids the examination of a party in the same manner and subject to the same rules of examination as this class of witnesses ? And why may not the language of the statute be held to apply to that class of witnesses as well as to a witness who is personally examined on the trial, or a witness whose deposition is taken and reduced to writing .upon verbal interrogatories ? We see no ground for confining the language of the provision to one class of witnesses rather than the other. Here the examination is to be before a commissioner; and of course is before trial. It is to be upon written interrogatories settled by the court or judge, and conforms essentially to the method of talcing examinations upon commissions. There is no general rale of court regulating the practice, and we do not see why it was not competent for the court to regulate the practice by an order under the other provisions of the statute, even if it could not do so by virtue of its inherent jurisdiction over the action. The statute confers ample authority upon the courts to make rules as to the issuing of commissions either in vacation or term time, and the filing of interrogatories, and all other matters relating to depositions taken out of the state. Section 27. In this case the order for the examination was made upon the affidavit and complaint, and was designed to aid the plaintiff in determining whether any amendment to the complaint was necessary. If the plaintiff has an absolute right to this examination of the defendant Luclington at this stage of the action, as was conceded by his counsel on the argument, it would seem to be a wise exercise of discretion on the part of the court to control and direct the course of the examination to certain matters. Otherwise injustice might be done by permitting the examination to branch off into irrelevant matters, and thus compel the disclosure of facts which have nothing to do with the case.

Section 55 provides that where the examination is had before the trial, at the option of the party claiming it, it may be before a judge of the court, or county judge, or court commissioner, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless for good cause shown the judge order otherwise. This relates more particularly to the length of the notice, though the statute gives the officer a discretion to enlarge or shorten the time for the examination “ for good cause shown.”

We do not deem it necessary to make any comment upon the cases in New York to which we were referred upon the argument. As we have already observed, the statute of that state upon this subject is different in some respects from our own, and consequently the decisions under it are not entirely applicable here. The conclusion which we have reached, in view of the various provisions of our statute, is, that the language used in section 54 imports that the examination may be had upon written interrogatories settled by the court or judge in which the action is pending, in the same manner and subject to the same rules of examination as other witnesses whose testimony is taken upon commission, if the court shall so order ; and that, as we have no general rule regulating the practice, ■it was competent for the court to adopt the practice which it did in this case.

By the Court.— The order of the circuit court is affirmed.