51 W. Va. 1 | W. Va. | 1902
The Hurricane Telephone Company, a corporation, hied, in the circuit court of Kanawha County, what purports to be a pure bill bf discovery, against J. Chas. Mohler, M. F. Mohler, William E. Mohler and Mohler Lumber Company. It alleges that the plaintiff has instituted an action at law in the same court against the same defendants as late partners under the firm name and style of the Kanawha Yalley Telephone Company, for the recovery of two thousand dollars as damages for the breach of a certain contract, made between the plaintiff and the Kanawha Yalley Telephone Company and fully, described in the declaration'filed in the action at law; that, in said action, said defendants filed two pleas and an affidavit in which they" allege that the Kanawha Yalley’Telephone Company, whose name is signed to the agreement sel forth in the declaration, was not, at the time the agreement was made and never was, a .partnership composed of the said defendants; and that, in a certain other suit pending on the law side of the same court in which the Kanawha Telephone Company is plaintiff and the Kanawha Valley Telephone Company is defendant and sued as a corporation, the said defendants filed a plea verified by the oath of W. E. Mohler, denying that it is a corporation.
The bill sets forth the nature of the plaintiff’s cause of action in the law case substantially as follows: It owned and
Other averments of the bill are, that, before said action at law was brought, the plaintiff therein endeavored to obtain from the defendant, W. E. Moilier, the names of the persons composing the firm of Ihe Kanawha Yalley Telephone Company, but ho declined to give them, although ho knew who composed it; that the name of said firm was signed to the-contract by J. Chas. Molder,, treasurer and secretary; that plaintiff is informed and believes that W. E. Mohler was active in the man
The prayer of the bill is that the defendants be required to answer the following interrogatories: "First: Whether the Kanawha Valley Telephone Company, was on the 3rd day of December, 1897, a corporation or a partnership. Second: If a partnership, who composed said co-partnership? Third: When, to whom and for what consideration did said Kanawha Valley Telephone Company sell its line, extending from Charleston to Winfield? Fourth: What reasons it had for complaint, if any, against this plaintiff? Fifth: Why the said parties who constructed and operated the line from Charleston to Win-field adopted the name of a corporation which had been previously chartered by the State of West Virginia?”
The defendants, J. Chas. Mohler, M. K Mohler and W. E. Mohler, filed a demurer to the hill setting forth the following causes of demurrer: “First: That the plaintiff has not made or stated such a case as entitled it in a court of equity to the relief prayed for in said bill or any part thereof. Second: This Court as a court of equity has no power or jurisdiction to entertain plaintiff’s hill, the object of which is to compel the defendants to furnish it the names of parties so that it may bring suit against them upon its alleged claim. Such is not the province of a bill of discovery. Third: That said bill is not sufficient in law nor in equity.”
• On the 16th day of April, 1901, the court overruled the demurrer and awarded a rule against the defendants requiring them to answer the bill not later than April 25, 1901, on pain of fine and imprisonment “stating, first, who composed the Ka-nawha Valley Telephone Company, whose name is signed to the contract set out in the bill dated on the 3rd day of Dccemjbcr,
At the hearing it was suggested, without argument or discussion, that this order is not appealable and the question is one of some difficulty. An appeal from such an order is not expressly given by any provisions of section 1 of chapter 135 of the Code nor section 3 of article VIII of the Constitution. It is not a decree for money nor is it an order or judgment directly and immediately involving freedom, although refusal to obey the order might ultimately result in the imprisonment of the, appellants. If this Court can, by way of prevention, interpose, in anticipation of that result, such proceeding would be very unusual and no precedent for it is known to exist. The constitution and the first clause of said statute provide for appellate jurisdiction in civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars wherein there is a final judgment, decree or order. This bill asks no pecuniary relief. It only seeks a discovery of facts, but that discovery is in aid of an action at law wherein the amount in controversy is two thousand dollars. This is a separate and distinct suit, it is true, but it is ancillary to the action at law and if the discovery is material to the action at law, as it must be in order to be had, then it may involve the whole matter in controversy in said action. The question has never been passed upon by this Court and the courts of the various states are not in harmony on the subject. In New York it has been held that an order for the discovery of books and papers is one affecting a substantial right and is, for that reason, appealable. La Farge v. Insurance Co., 14 How. Pr. Rep. 26; Wood v. De Figaniere, 25 How. Pr. Rep. 522. An order for the examination, before trial, of a party to the action is appealable for the same reason. Berdell v. Berdell, 86 N. Y. 519; Heishon v. Insurance Co., 77 N. Y. 278; In Re Slingland, 36 Hun. (N. Y.) 575; Green v. Wood, 6 Abb. Pr. (N. Y.) 277. An order requiring the production of books was held appealable in Bank v. Able, 88 Ky. 428. To the same effect are Noonan v. Orton, 28
Bills merely for discovery are of much less frequent and extensive use now than formerly because of statutory provisions for the examinations of parties to actions at law as witnesses. Such provision exists here. Code, chapter 130, sections 22, 23. But these provisions have not taken away the jurisdiction in equity by bill of discovery. In Russell v. Dickeschied, cited, Judge Woods thoroughly discusses that question and it is there formally and deliberately settled. It is not denied in this case that such jurisdiction exists.
On the main question it is to be noticed that the plaintiff sets out a good cause of action against the ICanawha Yalley Telephone Company. It shows that that company has, without cause or excuse, committed a breach of a contract made between it and the plaintiff. Furthermore, the bill shows that the plaintiff has already brought its action at law against said company for the recovery of damages for said breach of contract. From the allegations of this bill it is clear that the plaintiff is fully informed as to all the facts necessary to maintain its action at law with the single exception that it does not know what persons are liable to it for the breach of the contract. The bill does not ask for the disclosure of any evidence as to what the terms of the contract were, from which it may be inferred that the plaintiff has all the information it needs on that subject. All it desires to know is whether the Kanawha Yalley Telephone Company was a corporation or a co-partnership when the contract was made; if a co-partnership, who composed it; when, to whom and for what consideration it sold its telephone line; what reason it had for violating its contract; and why it adopted the name of a corporation chartered by the State. It is difficult to see how any of these matters can be material to the issue to be ultimately determined between the parties. They seem to relate almost, if not quite, exclusively to the issue tendered on the plea of a misjoinder of parties. The matters to which the fourth and fifth interrogatories relate are clearly not material to any phase of the case. They simply inquire for the reasons why the defendant did certain things. The answer to the third may tend to prove the breach of.the contract by showing that the Kanawha Yalley Telephone Company sold its line, and disabled itself thereby from carrying out the contract. The first
Counsel for appellants insist that the demurrer should have been sustained and for this they rely, principally, upon two grounds: One is that while the bill may state a cause of action it shows that the plaintiff has no right of action against the parties defendant to the bill and that its sole object is to discover or ascertain the parties against whom suit is to be brought. The other is that the bill does not show such interest in the subject-matter of the action on the part of the defendants as to afford ground for a bill of discovery against them. The main contention, however, is that this is a suit, not to obtain evidence in aid of an action at law, but to find out who can properly be made defendants to that action, or whether the plaintiff, having brought its action and asserted its demand against these defendants, has brought the action and asserted the demand against the parties who are liable.
All the authorities hold that a bill of discovery will not lie against a mere witness. Nobody can be compelled to answer such a bill except a person interested. Bart. Ch. Pr. 325; Mosley v. Green, 11 Paige (N. Y.) 240; 6 Ency. Pl. & Pr. 761; Dummer v. Clippenham, 14 Ves. Jun. 245; Hare on Discovery 751; Fenton v. Hughes, 7 Ves. Jun. 287; Yales v. Monroe, 13 Ill. 212; Jer. Eq. Jur., 258; Dineley v. Dineley, 2 Atk. 394; Story. Eq. Jur. 1489; Pom. Eq. Jur., s. 199. The interest of the defendant must be clearly set out in the bill. If suit has been brought the bill must set forth its nature with certainty to a common intent so that the court may judge whether facts alleged axe such as will support an action. Unless the facts set forth in the bill admitting their truth would enable the plaintiff to maintain an action he has no title to the assistance of a court of equity to obtain evidence of the truth of the case. 6.
That is- very different from the situation hero. The Hurricane Telephone Company has already sued all these defendants and the bill so states. It goes further than that and shows that the defendants have not only been sued but that they have tendered an issue, namely, whether they are the parties who contracted with the plaintiff and are liable for the breach. That raises a very important question in the case and one which may be as vital to the interests of the plaintiff in that suit as any other. It is in reference to that issue that the plaintiff stands in need of evidence which he does not possess' and which lies wholly within the knowledge of the defendants. At s. 561 of Stor. Eq. PL, after stating the necessity of the plaintiff’s unfolding so much of his title in the action at law as is sufficient to establish that it is such as, if made out, a good foundation of the action, says: “Not, that it is necessary, that the discovery asked should be such, as to reach all the points of fact involved in the proof and support of that .title; for, it seems, that a bill of discovery will lie to establish any facts in support of the action, although that discovery may not include all the facts necessary to support it." “A plaintiff, in this ease, is entitled, not only to have discovery in matters which he cannot prove, but of such matters as may be of ease and relief to him in recovering his title." Brereton v. Gamul, 2 Atk. 240. In Finch v. Finch, 2 Ves. 490, Lord Hardwicke said: “Every plaintiff is entitled to have a discovery from defendants as to two heads; to enable him to obtain a decree, and to ascertain facts material to the merits of his case, either because he cannot prove, or in aid of proof; for a man may be entitled to an answer of what he can prove, to avoid expense.” These last two cases were for relief as well as discovery but, as shown, the proposition there
From the’foregoing it is apparent that much of the argument by counsel for appellants is based upon a misconception. As has been shown the bill is not one whose purpose is to find out whom to sue. .But, if it were, there are many instances in which such a hill has been sustained. Stor. Bq. Jur. s. 1483, says a bill of discovery will lie to ascertain who is the party against whom suit should be brought but that these are of rare occurrence. Pom. Bq. Jur., s. 197, says a discovery may be needed to determine the proper parties. To the same effect are Beach on Mod. Eq., s. 858-; Hogg’s Eq. Pr., s. 580. But there are cases which might be taken to hold that a bill of discovery cannot, under any circumstances, be filed for that purpose, and some of them have been cited for counsel for appellants. They rely upon Opdyke v. Marbel and Others, 44 Barb. (N. Y.) 64. That was a motion for a discovery of books and papers made in an action at law brought for the publication of a libel in a newspaper published in the city of New York called “The World.” The petitioner showed that he did not know the names of the publishers and editors of the paper but was informed and believed that the defendants were' among them and had some connection with them. He averred that the information was necessary to enable him to prepare his complaint in the action. The court’held that such discovery could not be had, but this was done without referring in any way to any authority or any decided case. In Dineley v. Dineley, 2 Atk. 394, the bill was brougth to establish a will and sought discovery of the defendant whether she’ had any son by the testator then living, and a
In Hoppock v. Railroad Co., 27 N. J. Eq. 286, the bill was for discovery and relief. Plaintiff’s testator had a contract with a certain canal company by virtue of which he was to have certain quantities of water from the feeder of the canal for milling purposes. Afterwards the canal company was consolidated with the Camden and Amboy Eailroad Company,. Still later these companies were consolidated with the New Jersey Eailroad and Transportation Company, all adopting the name of the United New Jersey Eailroad and Canal Company. Still later the United New Jersey Eailroad and Canal Company leased its railroads and canal franchises, by legislative permission, to the Pennsylvania Eailroad Company. The agreement to furnish water was violated. The purpose and nature of the bill is set forth as follows in the opinion of the court: “The bill seeks relief on the ground of the inability of the complainants to obtain redress at law from want of information as to whom they should sue, and it asks discovery. I am satisfied that the complainants are entitled to the aid of the court in the premises. With a cause of action against the canal company, (and by the act of February 15, 1831, against the Camden and Amboy Eailroad Company, also), they are unable to proceed
In Post & Co. v. Railroad Co., 144 Mass. 341, the bill was for discovery only. It showed that there were two Ohio corporations, one of which had obtained judgment against the other. The 'officers of the debtor company resided in Massachusetts and its books and papers were there. Hence, it was impossible for the courts of Ohio to obtain jurisdiction of said officer’s books and papers. The creditor company desired to enforce the personal liability of the stock holders of the other company and thus secure satisfaction of its debt, but the names and resi-' deuces of the stock holders wore unknown and the bill was filed in the Massachusetts court to obtain that, information so that the stock holders residing in Ohio might be sued there. Field, Judge, in delivering the opinion of the court, reviewed the English and American authorities on the subject of bills of discover and in concluding he says: “But when a plaintiff has a cause of action against persons who are defined, either by statute, or by their relations to property or to a business by the management of which the plaintiff has suffered injury, and
Irving v. Thompson, 9 Sim. 18, is cited in the brief of counsel for appellants but it clearly does not bear any relation to this case. It was a bill for discovery brought by the defendants in an action at law against the sole plaintiff in said action and another person, one Kruger, alleging that the latter was interested with the plaintiff in the demand sued for in the action at law. The court held that Kruger was a mere witness and sustained his demurrer as was done in Fenton v. Hughes, 7 Ves. 287; Glyn v. Soares, 3 Myl. & Keen, 450. The demurrants in those three cases had not sued nor evinced any intention to sue the parties who filed the bills of discovery against them. The bills set up no cause of action on the part of the plaintiffs therein against the demurrants, nor did they allege any intention on the part of the plaintiffs to sue the demurrants. From this it is clear that there was no reason why they should have been required to answer the bills.
In Pearce v. Creswick, 2 Hare 286, Vice Chancellor Wigram, an eminent authority on the subject of discovery, said: “The necessity a partjr may be under, from the very nature of a. given transaction, to come into equity, fox discovery, is a circumstance
It is argued in the brief of counsel for appellant that the hardship of the situation of the plaintiff here should have no weight in determining the question of jurisdiction for the reason that in entering into this contract with the Kanawha Valley Telephone Company without having first inquired and obtained knowledge whether it was a corporation or a co-partnership and, if a co-partnership, who the partners were it voluntarily put itself into an embarrassing situation from which it asks the court to relievo it. TJpon this proposition appellants rely upon Twells v. Costen in which the court said: “It is not the function of courts to supply the defects in the terms of contracts which the want of prudence or forecast in the contractor has omitted; at all events they ought not to aid him to get out of a difficulty which a superior sagacity would have anticipated, by introducing a rule of law which might work general evil. The necessity in such a case seems a necessity arising from want of sufficient forecast in malting a bargain; a necessity which if ad-
From these conclusions it results that there is no error in
Affirmed and Remanded.