Damascus v. Home Coal Co.

April 8, 1927, there was filed in the Circuit Court a document entitled "Petition for Order for Examination of Witnesses," which averred that the petitioner was the administratrix of the estate of D.T. Damascus, deceased; that the latter had been a stockholder in the Home Coal Company, and that the petitioner had been informed by officers of that company that the deceased had transferred his stock to the company or to some other person, whose identity the petitioner could not ascertain; it alleged that if any such transfer had taken place, it was not based upon any consideration. Further, it alleged that Alex Karrahales is an officer of the coal company, and has charge of its books and records and is possessed of knowledge of the foregoing transactions, and that his testimony is both material and necessary to the prosecution of any suit by the petitioner for the recovery of the stock and to establish an interest of the deceased in the corporation. The next paragraph alleges that the petitioner expects to commence a suit against the Home Coal Company, to recover the stock and personal property above mentioned; that it is necessary to the prosecution of such suit to obtain and perpetuate the testimony of Karahales and to obtain the information and facts disclosed by the books and papers of said corporation. The prayer applied for an order for taking the testimony of Karrahales, to be used in the prosecution of such suit as the petitioner may commence. April 11, 1927, the court made an order, which directed that Karrahales appear April 15, 1927, and bring with him the stock-books of the company "and any books, papers or documents, pertaining to any sale, transfer, or assignment by said D.P. Damascus, deceased," and that he should then give his testimony as a witness concerning the above-mentioned matters. The order closed by directing that a copy of it should be served upon Karrahales and the Home Coal Company; the order was served upon Karrahales only. April 13, 1927, the Home Coal Company, appearing specially, moved for the vacation of the above order. The motion was denied and the coal company has appealed. APPEAL DISMISSED. An order to be appealable must be final: Section 548, Or. L. Appellant has called to our attention the case of Cassatt v.Mitchell Coal Coke Co., 150 Fed. 32 (10 L.R.A. (N.S.) 99), as authority for its contention that the order made by the Circuit Court was a final one. Subsequently, this case was before the federal Supreme Court under the title of Webster Coal CokeCo. v. Cassatt, 207 U.S. 181 (52 L.Ed. 160,28 Sup. Ct. Rep. 108); the decision which this appellant relies upon was there reversed.

The order entered by the court below required nothing of the appellant; in fact it was not even served upon it, although Section 883, Or. L., contemplates such service. Hence, the interest of the appellant will become affected only when the deposition is offered in evidence. It may be argued, however, that the production of the books of the corporation will affect the latter's interests; we observe again that the order does not require the corporation to produce the books. The mere fact that the order directed the employee to produce the corporation's books affords the appellant no firmer basis for an appeal than a similar order made during the progress of a trial. Karrahales, who may or may not be able to comply with the order, has not appealed. See Webster Coal Coke Co. v. Cassatt, supra.

It follows that the appeal shall be dismissed.

APPEAL DISMISSED.

RAND, C.J., and BEAN and McBRIDE, JJ., concur.