Cleveland v. Burnham , 60 Wis. 16 ( 1884 )

The following opinion was filed October 23, 1883:

Lyon, J.

In Stuart v. Allen, 45 Wis., 158, the appeal was from an order made in a proceeding similar to that hero under consideration, in which the court ruled that a party in his examination before a commissioner, pursuant to sec. 55, ch. 137, R. S. 1858, and the amendments thereto, (2 Tay. Stats., 1602, § 81), rightfully refused to answer certain interrogatories put to him by the adverse party before the commissioner. It was held that such order was not appealable. The grounds of the decision are thus stated in the opinion by Mr. Justice Obton: “The order itself, although in the form of an order denying the motion based upon the order or rule to show cause, is really nothing more than the ruling of the county court as to the relevancy and admissibility of certain evidence offered by the appellants and objected to by the respondent, and is no order, either intermediate or final, properly so-called, which, under the statute, is appealable.”

So far as it affects the merits of the motion to dismiss this appeal, there is no essential difference between the statute under which the proceedings were had in Stuart v. Allen, and sec. 4098 of the Revision of 1878, under which the present proceedings were taken.

It was held in In re Day, 84 Wis., 638, that an order in a proceeding adjudging a party guilty of contempt, and requiring him to indemnify the other party to the amount he had been injured thereby, was “ a final order affecting a substantial right made in a special proceeding,” and therefore appealable. R. S. 799, sec. 3069, subd. 2. To the same effect are Lamonte v. Pierce, 34 Wis., 483; In re Murphey, 39 Wis., 286; In re Ida L. Pierce, 44 Wis., 411. In all of these cases the appealability of an order in contempt proceedings, awarding indemnity to the injured party, is asserted, and many other cases to the same effect are cited in the opinions.

In State ex rel. Lanning v. Lonsdale, 48 Wis., 348, an appeal was entertained from an order, adjudging a witness in contempt who, when giving his deposition before a commissioner, refused to answer certain interrogatories propounded to him, and requiring him to pay the costs and expenses to which the injured party had been put by reason of such misconduct. The appealability of the order was not questioned, but under the rule of the cases above cited there is no room to doubt that it is an appealable order.

The learned counsel for the appellant queries whether the Lonsdale Case does not overrule Stuart v. Allen. We are of the opinion that it does not. The cases are essentially different and are ruled by entirely different principles. We think both of them were correctly decided.

In. the present case, had the order only required the appellant to go before the commissioner and answer the interrogatories which he had theretofore refused to answer, we should be of the opinion that the case would be ruled by Stuart v. Allen, and hence that the order would not be ap-pealable. But the order goes further. It requires the appellant to pay the costs of the proceedings already had before the commissioner, and $10 costs of the motion. Thus the appellant is required to indemnify the plaintiff, in part at least, for the injury sustained by him because of the alleged misconduct of the appellant. This feature of the order, we think, takes the case out the rule of Stuart v. Allen, and brings it within the rule of the Lonsdale Case, and the other cases above cited. It must, therefore, be held that the order is appealable.

For the appellant there was a brief by Cottrill <& Hanson, and oral argument by Mr. Cottrill. For the respondents there was a brief E. Mariner and Qeo. H. Noyes, and oral argument by Mr. Noyes.

By the Court.— Motion denied.

The following opinion was filed January 8, 1884:

Oassoday, J.

No action to obtain discovery under oath in aid of the prosecution or defense of another action is allowable; but the examination of a party, or, in case a corporation be a party, then of a principal officer or managing agent thereof, otherwise than as a witness on a trial, maybe taken by deposition, at the instance of the adverse party, in an action or proceeding, at any time after the commencement thereof and before judgment. Sec. 4096, E. S.; ch. 194, Laws of 1882. The attendance of the party or person to be examined may be compelled as provided, and such examination is subject to the same rules as that of any other witness, but the witness is not to be compelled to disclose anything not relevant to the controversy. Hid. The court, by order, may limit the subjects to which such examination may extend, otherwise disclosures are not to extend to anything not relevant to the controversy. Ibid. Here the the order limited the subjects to which the examination might extend, to matters embraced within the issues made by the amended complaint and the answer of the defendant Burnham. The examination thus authorized was undoubtedly intended as a substitute for a bill of discovery under the old practice. The statute merely regulates a former remedy. Being remedial, it should be liberally construed. The authority to. enact such statute is not seriously questioned and need not be here considered.

In such examination of an adverse party there is a liability of his being a perverse party. Eor this reason, the examination has been held to be in the nature of a cross examination, and hence the range and admissibility of the questions are, to some extent, discretionary with the presiding judge. Stuart v. Allen, 45 Wis., 164. The liability of the defendant Burnham depended upon his being a stockholder of the bank at a particular time or times. If he was a stockholder at the time the action was commenced, he would seem to be liable under ch. 71, R. S. 1858. Cleveland v. Burnham, 55 Wis., 598. Prior to that decision, as there stated, this court had not decided whether one was liable or not who was a stockholder when the debt accrued but had transferred his stock in good faith before suit was commenced. Ch. 242, Laws of 1861, was voted upon by the people in November, 1861, and took effect December 1,1861.' That act continued the liability of a stockholder for six months after he had transferred his stock. Sec. 16. This action was commenced April 3, 1862, and hence within six months after the act took effect. This being so, it would seem to follow that if Btornham was such stockholder when the act took effect, or became such afterwards, and before the commencement of the action, he would be liable, even though he in fact transferred his stock before the suit was commenced. Whether that law could continue the liability of a stockholder who had sold his stock before it took effect, was not a question presented for decision in 55 Wis., 606, and is not necessarily presented now. The object of the examination .was to elicit the facts as to just when he became a stockholder, and how long he continued to be such, in order that the whole case might be determined at once, instead of being presented in piecemeal. We see no good reason why Mr. Burnham should not make such disclosures. Counsel seem to think the examination should be strictly confined to the time of the commencement of the action, and then that the plaintiffs should be satisfied with a simple affirmance or denial. But such a practice might enable a perverse party or witness to conceal the real facts, and compel the opposite party to accept his conclusion of facts, instead of the facts themselves. We cannot say, from the record before us, that the trial court has abused its discretionary powers in ordering the questions to be answered.

It is urged that the order to answer, pay costs, etc., should be reversed because the order to show cause was not personally served. By refusing to answer, Mr. Burnham subjected himself to punishment as for a contempt, and to have his answer stricken out and judgment given against him as upon default. Sec. 4097, R. S. The misconduct in refusing to answer having necessarily produced actual loss or injury to the plaintiffs, the court was authorized by statute to order a sufficient sum to be paid by the defendant to the plaintiffs to indemnify them and to satisfy their costs' and expense, instead of imposing a fine. Sec. 3490, R. S. This was done by ordering Mr. Burnham to “pay the costs of such proceedings already had before said commissioner, and also $10 costs of this motion.” This we construe to be such proceedings already had before the commissioner against Burnham personally in attempting to make him give his deposition, and $10 costs of the motion; in other words the taxable Costs. In other words, it limits the amount which he was ordered to pay, to the actual pecuniary loss or injury sustained by the plaintiffs by reason of such refusal to answer solely, and in that it is distinguished from State ex rel. Lanning v. Lonsdale, 48 Wis., 367, 868. The order in that case, as well as in this, did not purport to impose punishment for a criminal contempt; but in that case (unlike this) the amount ordered to be paid was not limited to the actual, direct, tangible damages occasioned by the misconduct. Not being a proceeding for criminal contempt, the failure to give personal notice of the motion is no ground for reversal. Otherwise, a nonresident refusing to give such deposition could not be punished by having his answer stricken out or complaint dismissed without personal service of the motion.

Eor the reasons given the order of the county court must be affirmed.

By the Court.- — • Order affirmed.

A motion for a rehearing was denied March 18, 1884.