169 Wis. 438 | Wis. | 1919
The circuit court commissioner and the circuit court held that an examination of a party to an action “otherwise than as a witness on a trial” under sec. 4096, Stats., which “may be taken by deposition at the instance of the adverse party in any action or proceeding, at any time after commencement thereof and before judgment,” is in substance and effect calling the party as a witness on a “trial in a court of justice” within the contemplation of the provisions of sec. 2020, Stats. This interpretation of sec. 4096 is contrary to the evident intent expressed by the words of the statute. The word “trial” used in this connection is clearly used in the sense it had acquired in the law when the statute was enacted. “Trial” in its legal meaning has been defined as “the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue for the purposes of determining such issue.” 3 Bouv. Law Dict. 3320, and cases cited. This definition is in harmony with the definition of a trial as used and defined in-the statutes of this state concerning courts, actions, and proceedings in actions. Sec. 2842 defines a trial as follows: “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.” In Carpenter v. Winn, 221 U. S. 533, 31 Sup. Ct. 683, the court made an examination' of the subject and declared that the word has acquired a broader significance than its original common-law meaning, and has come to mean “the final examination and decision of matter of law as well as fact, for which every antecedent step is a preparation.” In this case the court had under consideration the question whether the
It is further contended by respondents that the ruling of the circuit court is justified on the ground that the. ditty imposed on the bank commissioner and the deputy and every clerk in the department, “to keep secret all of the facts and information obtained in the course of such examination, except so far as the public duty of such officer requires him to
It is strenuously urged that the protection of secrecy enjoined by sec. 2020, although vitally essential to a bank as a going concern, is wholly unnecessary and useless to an insolvent bank, the affairs of which have been for several years past in process of liquidation like those of the Trust Com-, pany. This claim is based upon the ground that the reasons for secrecy, under such circumstances, have ceased, in that the evils guarded against making public its financial and business affairs can no longer affect it in a harmful way. The object of the statute includes more than protecting the financial and business affairs of a bank that had been exam
It is considered that the circuit court commissioner and the circuit court erred in ordering the plaintiff to produce the reports in question upon his examination as a party otherwise than as a witness on the trial, and in adjudging him guilty of contempt for his refusal to produce and submit to respondents the reports specified in the question propounded to him upon such examination.
By the Court. — The order appealed from is reversed, and the cause remanded to the circuit court with direction that the court enter an order vacating the order of the court commissioner ordering appellant in contempt and to dismiss the warrant issued therein, and for further proceedings according to law.