246 N.W. 478 | Minn. | 1933
Lead Opinion
G. S. 1923 (2 Mason, 1927) § 9886, provides that the court before which an action is pending "may order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any book, document, or paper in his possession or under his control, containing evidence relating to the merits of the case." *633
Is an order granting or denying such a motion an appealable order? It is urged that such an order is a provisional remedy and appealable under § 9498(2) of the statutes.
Discovery under the common law was by bill in equity for discovery of facts residing in the knowledge of the defendant named in the bill, or discovery and inspection of deeds, writings, or other things in his custody, but seeking no relief other than such discovery. It was a separate action or proceeding wherein the one seeking discovery was plaintiff and the other party or parties to a pending or contemplated action at law were defendants. Interrogatories were included in or attached to the bill, and the defendant or defendants therein were required to answer them.
Our statutes do not provide any such proceeding. The order for an inspection of books and documents is a mere order of the court in a pending action. The statute does not in terms require any formal application or notice. The order may apparently be made during or before trial on notice or ex parte. An appeal from such an order is likely to result in serious delay in the prosecution of the action. If held a provisional remedy, the granting of such inspection will prevent the dismissal of the suit by the plaintiff before trial. G. S. 1923 (2 Mason, 1927) § 9322(1). In Harris v. Richardson,
Provisional remedies have been enumerated as including arrest, attachment, bail, claim and delivery, injunction, ne exeat, and receivership.
Inspection of books and papers, under the Wisconsin statutes, has been held in that state to be a provisional remedy. The Wisconsin statute goes farther than ours and permits examination of an adverse party as a witness, practically the same as the common law suit for discovery. See Ellinger v. Equitable L. A. Society,
The case of Alexander v. U.S.
We find nothing in subds. 3, 5, or 7 of § 9498 of the statutes making the order here in question appealable.
The order was not an appealable order, and the appeal is dismissed.
Dissenting Opinion
If I were making law I would do it precisely as it is done in the majority opinion, which probably reaches the more desirable result. But inasmuch as we must take the statute as we find it, I reach the opposite conclusion.
If the order in question is one granting or denying a provisional remedy, within the meaning of G. S. 1923 (2 Mason, 1927) § 9498 (2), it is appealable. Inasmuch as a provisional remedy is one "provided for present need, or for the occasion * * * one adapted to meet a particular exigency" (6 Wd. Phr. [1 ser.] 5752) there ought to be no question but that discovery is a provisional remedy. Historically, at least, it was so much a remedy that it was the subject of an independent ground of equity jurisdiction. The remedy given by our statute is but a partial substitute for that formerly provided by a bill for discovery in chancery. Turnbull v. Crick,
To say that under our present procedure such an order is interlocutory merely (see State ex rel. Seattle G. C. Co. v. Superior Court,