White v. Bankers Nat. Life Insurance

March 5, 1926. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Henry, Circuit Judge, requiring the plaintiff to be examined in open Court, at a fixed time, under Section 692 of the Code of Civil Procedure. The sole question involved is one of procedure.

The defendant, desiring to have the plaintiff examined under the section referred to, gave notice to the plaintiff on January 19, 1925, that the examination would be had before the presiding Judge on the 1st day of the February term of the Court, and had him served with a subpoena ad testificandum. On account of other matters engaging the attention of the Court, the matter did not come up until February 18, 1925, about the hour of adjournment. The plaintiff made objection that the procedure adopted by the defendant did not conform to the amendment to Section 692 passed in 1923 (Acts of 1923, p. 170). The presiding Judge overruled the objection and passed an order requiring the plaintiff to appear and be examined the following morning, February 19th, at 9 a. m. The plaintiff appealed from said order, and procured an order of supersedeas from a Justice of this Court.

In the case of Fox v. Clifton Mfg. Co., 114 S.E., 700;122 S.C. 86, decided December 5, 1922, the Court held that a party had the right to examine his adversary before trial, under Section 692, without procuring an order therefor, and without assigning any reason. At the ensuing session of the General Assembly in 1923, the section was amended by adding these words, qualifying the right:

"Nor unless it be upon the order of a Judge of the Court, granted after four days' notice, and upon good and sufficient cause being shown therefor."

It is admitted by counsel for the defendant that the amendment of 1923 had not been called to his attention when the proceeding was instituted.

The procedure adopted not being in conformity with the statute as amended, the order must be reversed, and it is so ordered.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS, BLEASE and STABLER concur.