62 Wis. 660 | Wis. | 1885
One of the most important charges in the publication made by the defendant, and charged by the plaintiff as libelous, is that the plaintiff presented to the board of registration of the First ward of the city of Milwaukee, for registration as legal voters therein, the names of 250 persons contained on a list made by him, who were not qualified voters in said ward, and presented said list to said board, and procured thereby the names of such persons so entered on said list to be placed upon the registry of legal voters in said ward. This is substantially the charge in respect to such list contained in said publication as set out in the complaint. Before answering said complaint, the defendant company, by the affidavit of C. F. Ilsley, the vice-president of said company, states that said list is in the possession or under the control of the plaintiff or of his attorney in the action, and that, by advice of counsel, an inspection and copy of said list are necessary to enable the defendant ,to frame its answer to the action and prepare its defense therein, and states some facts and circumstances tending to-show the necessity of such inspection to fully secure the rights of the defendant in the action. The motion based upon said affidavit was granted by the circuit court, and an order entered thereon in the form agreed upon by the counsel of the respective parties, without waiver of any objection of the plaintiff to the substance thereof. This appeal is from that order, and the grounds of objection thereto are (1) that the inspection of such a paper should not be ordered
It is not understood that the learned counsel of the appellant disputes the power of the court to order inspection of books, papers, documents, etc., in the possession of the opposing party, in a proper case, either under sec. 4183, R. S., or under rule YTY of the rules of the circuit court, although there is some question made in their brief as to whether the statute and the rule can stand and be in force together. It is sufficient to say as to this question that the present rule substantially has been in force in this state a long time, and long before the present statute was enacted by the Revision of 1858, ch. 137, sec. 93, and the power of the court to make it has been unquestioned, as superseding a bill of discovery. The power of the court to make such a rule being conceded, the only question is, Did the statute so conflict with the rule as to render it inoperative? The rule provides for such examination of the books and papers in the possession or under the control of the opposite party “which may be necessary to enable the applicant to frame his complaint, answer, or reply, as the case may be.” The statute allows such inspection of books' p&pers, and documents in the possession or under the control of the opposite party, “ containing evidence relating to the merits of the action or the defense therein.” Under the statute, the only purpose is to secure evidence in the case. The statute does not provide for the case of an inspection of books and papers to enable the applicant to frame his complaint, answer or reply. In Noonan v. Orton, 28 Wis. 600, the application was made under the rule for this purpose long after the statute was enacted, but the application was held insufficient under the ruld. Since the statute, the rule is just as necessary as it was before, in such a case.
It will require other proof than the list itself to criminate the plaintiff or to justify the libel. If a suit is brought on a promissory note and the defendant denies the signature thereto, or alleges it to be a forgery, in his answer, may he not crave oyer of the note, or demand its inspection, against the objection of the plaintiff that its production will crim-inate him? The note itself is proper and necessary'evidence in the case. So, here, this list of names is proper evidence in the case for the defendant, if he plead justification, and its inspection could be ordered under the statute on that ground, against the objection of the plaintiff that if produced it would tend to criminate him. The making of this list by the plaintiff, and its presentation to the board of registry, are material statements in the publication, but of themselves they do not import or impute crime. To justify the libel requires much other proof besides this list. Is there any question but that such a paper could be produced on the trial by the defendant if he have it under his control, although the plaintiff might object that its production would tend to criminate him? In order to introduce it in evidence, or its contents if destroyed, the defendant must first obtain its inspection; and the defendant’s vice-president, Usley, states as a further reason for the inspection of such list that it may be compared with the names on the registry in order to ascertain the facts. In short, we do not think such an objection ought to prevail against the inspection asked for, (1) because the objection is not urged by the plaintiff himself under oath as a personal privilege; and (2) because it is not apparent that the inspection of the
By the Court.— The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.