DocketNumber: No. 17,495
Citation Numbers: 92 Neb. 743
Judges: Barnes, Faavcett
Filed Date: 1/16/1913
Status: Precedential
Modified Date: 7/20/2022
Appeal from a judgment of the district court for Lancaster county vacating a temporary restraining order and
It appears that on January 12, 1912, the action last aboAre mentioned was pending in the district court for Dodge county, Avherein the plaintiff, Witt, sought to recover from the defendant, the Old lane Bankers Life Insurance Company, a certain advanced premium. It further appears that on January 15, 1912, one J. A. BroAvn, a notary public in and for Lancaster county, at the request of plaintiff in that action, issued a subpoena, the terms of which purported to command J. A. Harley, M. L. Blackburn, and E. F. Pettis, as AAdtnesses in behalf of the plaintiff in the aforesaid action, to appear before him to testify, by deposition, as Avitnesses in the action pending in Dodge county, as aforesaid, and to bring Avith them certain documents and q>apers AAdiich the plaintiff sought to procure as evidence in that cause. It also appears that E.’F. Pettis AA’as the attorney of the Old Line Bankers Life Insurance Company, Avho was conducting its defense in the action aboATe mentioned, and that the papers and documents described in the subpoena Avere in his possession as such attorney.
The plaintiff thereupon brought this action, setting forth in its petition the foregoing facts, together Avith a description of the papers and documents sought to be produced before the notary public, which are described as follows: “The application of the plaintiff above mentioned for a policy of insurance in the defendant; the medical examination made by O. C. Hopper, accompanying or relating to said application; all letters written by the plaintiff to the defendant or to any of its officers, agents, representatives or physicians from August, 1905, to July, 1906. inclusive; carbon or letter-press copies of all letters written by the defendant or any of its officers, agents, representatives or physicians to the plaintiff from August, 1905, to July, 1906, inclusive; carbon or letterpress copies of all letters written by the defendant to any
It is appellant’s main contention that the district court erred in sustaining the demurrer to plaintiff’s petition; and it is argued that a party to an action and a notary public may be enjoined from taking the deposition of an attorney or a party to an action where it is sought to require such attorney to give evidence and produce papers and documents which the opposing party deems necessary for the purpose of properly conducting his case, if it is alleged that the evidence and the production of the papers are privileged. We are of opinion that, where it clearly appears that the notary is proceeding illegally and in violation of his legal authority, such an injunction may be granted; but, as we view the plaintiff’s petition in this case, it is entirely insufficient to warrant the relief prayed for.
It must be conceded that in this state the parties to a civil action are competent witnesses, and each may be
In In re Hammond, 83 Neb. 636, it was held that a refusal to answer such improper questions as would constitute abuse of process is not a contempt, and may not be punished; and a witness is entitled to his privileges and his immunities, as well when a deposition is taken as when examined in open court. Therefore, if the evidence which was sought to be elicited from the defendant’s attorney was in fact privileged, his rights could have been protected without the intervention of a court of equity. It is not seriously contended that an officer authorized to take depositions is not clothed with the power to require the production of papers and documents by a subpoena duces tecum; but such a proceeding is often unnecessary and may be improper in a case of this kind, for sections 393 to 395 of the code specifically provide for the production and inspection of papers and documents in the possession of an opposing party. Therefore, in view of the foregoing authorities, it may be stated that a court of equity will not restrain an officer from exercising his authority to take depositions, unless it is clearly shown that he is attempting to do so unlawfully.
It is further contended that, where a demurrer is sustained to a petition, the plaintiff has the right to file an amended pleading, and therefore the court erred in dismissing the action. It is a sufficient answer to this contention to say that the record fails to disclose any request by the plaintiff to amend his petition. Not only did counsel fail to make such a request, but, as a matter of fact, he stood upon his petition by excepting to the ruling, by obtaining time to settle his bill of exceptions, and by securing an order of the court fixing a supersedeas bond for the purpose of prosecuting his appeal. Therefore this contention is without merit.
Finally, it is argued that the district court erred in treating the special apearance of defendant Witt as a demurrer to the plaintiff’s petition. If this was error, it was without prejudice to the plaintiff’s rights. The demurrer of defendant Brown was properly sustained, and the action was rightly dismissed as to both of the defendants.
Affirmed.
I concur, but upon the ground that tbe application for relief should have been made in the court Avhere the case in Avhich the depositions Avere being taken Avas pending.