124 A. 1 | R.I. | 1924
Petition for a writ of prohibition.
Petitioner is the defendant in an action on book account, now pending in the Superior Court, in which the Crooker Company, plaintiff, seeks to recover for certain flooring furnished and laid by plaintiff in defendant's dwelling house. *492
Prior to trial, plaintiff filed a motion alleging that in order to prepare its case for trial, it was necessary for plaintiff to examine the flooring with experts, and requesting the court to enter an order allowing plaintiff, with one or more experts, to examine the flooring. This motion was heard and granted. Thereafter, on motion of defendant, the entry of the order was stayed by the Superior Court to allow defendant to submit the question to this court.
General Laws, 1923, Chapter 342, sections 18 and 19, provide for the appointment by any justice of the Superior Court in any cause at any time before trial, on motion of either party, of one or more disinterested skilled persons to serve as expert witnesses; that the fees for such experts as fixed by the court shall be first paid by the moving party to the clerk of the court and shall form part of the costs of the case; such experts, after being sworn to make an impartial examination into the matters and things committed to them, are required to report their findings to the court and to attend the trial until excused by the court; the report, if in writing, becomes a part of the record of the case; any party may also call and examine or cross-examine such expert witness at the trial. Plaintiff asks permission to make an examination with experts selected by himself, who may or may not be witnesses at the trial, as he elects.
The motion is based not on any statute, but on an alleged inherent authority in the court, apart from the statute, to authorize such an examination. We think the court does not have such authority. In some jurisdictions where there are no enabling statutes, it has been held that the trial court has such a power, the reason given being on the ground of necessity, in order that all the available evidence may be presented to the court and that a party shall not be permitted to withhold evidence which is under his control. Other authorities hold that the trial court in an action at law prior to the trial, has no such authority. This latter view is more consistent with precedents and the practice at common law, the general rule being that neither party in a common law *493
action can compel his opponent to disclose or to furnish evidence before trial. In Union Pacific Railway v. Botsford,
The petition for a writ of prohibition is granted.