28 Wis. 600 | Wis. | 1871
The question as to the appealability of this order has already been decided, and nothing further need be said upon that point. We will therefore now proceed to consider the order on its merits.
The order in effect requires the defendants, within twenty days after the service of the same upon them, to deliver to the attorney of the plaintiff a sworn copy of the written contract or contracts by which the defendant McNab sold and transferred to his co-defendant the whole or any part of his interest in the partnership property of the late-firm of Noonan and McNab, or by which Orton acquired an interest therein; and also a sworn copy of all and any writings in their pos
It is claimed by tbe defendants that tbe application for tbis order was defective in form and substance, and tbat it never should bave been granted on tbe papers presented to tbe county court. Tbe form of tbe application might perhaps be held a sufficient compliance with tbe rules of court upon tbe subject, providing tbe affidavits upon wbicb tbe order was granted bad stated “tbe facts and circumstances ” wbicb showed tbat a discovery of tbe contracts was necessary to enable tbe plaintiff to frame bis complaint. But it appears to us tbat tbe affidavits fail to show that sucb discovery is necessary.
Tbe action is brought to rescind a sale and transfer by McNab to Orton of tbe former’s interest in tbe copartnership property of tbe firm of Noonan & McNab, or some part thereof, wbicb sale has been made in violation of a stipulation or agreement in tbe articles of copartnership. The plaintiff, in bis affidavit, states tbat be is informed and believes tbat tbis contract of sale is in writing, and contains tbe evidence of sucb sale and transfer, and tbat it also contains evidence relating to tbe merits of tbe action, and tbat sucb contract is in tbe possession or under tbe control of tbe defendants, or one of them. Further, tbat tbe written contract, of wbicb discovery is sought, is not in bis possession or under bis control, and tbat be is advised by bis counsel Jason Downer, and verily believes, tbat tbe discovery of tbe written transfer and sale, and of all contracts or writings relating to tbe same, is necessary to enable him to draw tbe complaint in tbe action; and be therefore asks tbat an inspection and copy of tbe written transfer and sale may be given him. Tbe affidavit of Judge Downer contains substantially tbe same matters, and tbe further statement, tbat, being informed tbat tbe written contract was in tbe possession of A. R. R. Butler, of tbe firm of Butler & Winkler, who are attorneys of McNab in tbe action, be applied to Mr. Butler to see tbe same, wbicb tbe latter declined letting him see. Tbis is tbe substance of tbe affidavits.
We have attached no importance to tbe fact that tbe application in this case was founded upon affidavits rather than by a formal petition. But it appears to us that tbe affidavits are insufficient because they do not state tbe facts and circumstances wbicb show that it is material and necessary that tbe plaintiff should have a discovery in order to frame bis complaint. As already observed, this action is brought to rescind a contract of sale of an interest in copartnership property, made by tbe defendant McNab to bis co-defendant, for tbe reason that this sale was made in violation of a stipulation in tbe articles of co-partnership. If tbe plaintiff is entitled to have that sale set aside, is it not quite immaterial to him what its terms and conditions are? He claims that be is entitled to-have tbe sale set aside in any event. That is tbe relief be seeks. Why, then, is it necessary that be should have an inspection and discovery of this contract in order to prove bis complaint? We certainly fail to see why or bow it is necessary that be should have it. It is true, tbe plaintiff states in bis affidavit that be has been advised by bis counsel and verily believes such discovery is
By the Court. — The order of the county court is reversed, and the cause remanded for further proceedings.