32 Wis. 212 | Wis. | 1873
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
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
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
By the Court.— The order of the circuit court is affirmed.