215 Wis. 528 | Wis. | 1934
The plaintiff, after service of a summons in a circuit court action naming L. Brooks Leavitt and fifteen others as defendants, duly served a notice on Leavitt and each of two other defendants that they wpuld be examined before a court commissioner “otherwise than as witnesses on a trial” under sec. 326.12, Stats. A subpoena duces tecum was issued by the court commissioner requiring attendance of the three defendants and the production of papers as indicated in the foregoing statement of facts. The purpose of the examination of the defendants as stated in the affidavit attached to the notice was to enable the plaintiff to plead. The statute under which the affidavit was presented is as follows: •
“326.12 (4) Discovery needed to plead. If discovery is sought, to enable the plaintiff to frame a complaint, the notice of taking the examination shall be accompanied by the affidavit of himself, his attorney or agent, stating the general nature and object of the action or proceeding; that dis*531 covery is sought to enable him to plead, and the subjects upon which information is desired; and the examination relative thereto shall be permitted unless the court or presiding judge thereof shall, before the examination is begun, further limit the subjects to which it shall extend, which may be done on one day’s notice.”
The affidavit states “that the nature of the action is to recover damages for false representations and suppressions in the sales and purchases of certain securities made by the defendants to the plaintiff; that discovery is sought to enable the plaintiff to pleadand then states in separate paragraphs “the subjects upon which discovery is desired.” From these paragraphs it sufficiently appears that the “certain securities” referred to are securities of or negotiated by the Credit Alliance Corporation.
The appellant claims that the affidavit complies with the statute and entitles him to an examination of the defendants named in the subpoena to enable him to plead. The respondents claim that the affidavit is insufficient because it does not state facts showing that the plaintiff has or probably has a cause of action. We see nothing in the statute that requires any detailed statement of facts. Only the “general nature and object of the action” need be stated. These appear from the affidavit.
We are here concerned only with the right to examine to enable the plaintiff to plead. The statute originally and up to 1885 contained no provision specially applicable to examinations to enable to plead. Ch. 137, secs. 54, 55, Stats. 1858; sec. 4096, Stats. 1878. Examination might be had at any time after service of the summons, but the defendant could not be required to disclose anything not relevant to the controversy. The court might by order limit the subjects upon which examinátion might be had before the issues were settled by pleas, but not afterwards. Kelly v. Chicago & N. W. R. Co. 60 Wis. 480, 19 N. W. 521. By ch. 321,
In Stats. 1911, old sec. 4096 was rearranged and the provision here involved was numbered as subsection 5; and in 1927 it was renumbered as sec. 326.12 and simplified but without change of meaning.
The respondents cite to the point that facts must be stated to warrant an adverse examination to enable a party to plead a statement in Worthington P. & M. Corp. v. Northwestern I. Co. 176 Wis. 35, 41, 186 N. W. 156, that “a general allegation of materiality and necessity is not sufficient, but facts must be stated showing how and why the discovery or inspection is material.” As applied to situations not con
Whether the court properly quashed the duces tecum provision of the subpoena is another question. The respondents claim that even if the examination may be had as to the matters indicated in the affidavit, they cannot be compelled to produce the documents referred to in the subpoena duces
The respondents’ claim that the omission of sub. (3) in the 1925 Statutes was due-to the ruling in-the Tobacco Pool Case is erroneous.’ The omission occurred in a revisor’s bill prepared and introd'uced before the Tobacco PooUCase was decided. The omission doubtless occurred because it was
But while the omission of sub. (3) of the 1925 Statutes is without significance in determining the scope of sub. (4) of the present statute, the holding in the Tobacco Pool Case, supra, that inspection of documents, etc., can only be justified under sec. 269.57, rules the point now under consideration in respondents’ favor.' The duces tecum provision of sec. 325.01 is directed to production of particular documents, papers, or books required for introduction in evidence. It is not to be employed to procure inspection of files to determine whether they contain evidence, which is manifestly the purpose of the insertion of the wide and comprehensive language of the duces tecum subpoena issued in this case. The form of the subpoena not only fails to identify particular papers, but it would by its terms require the removal of the defendants’ files from their offices, contrary to the rule declared, or at least intimated, in the Tobacco Pool Case, supra, p. 594. It would also be contrary to the rule that before inspection or examination of papers and files can be compelled, as indicated in the Tobacco Pool Case, and as held in the Worthington P. & M. Corp. Case, supra, it must be made to appear that they are material to the issue. The only issues here involved are those disclosed by the points upon which plaintiff desires examination. It does not appear that the defendants have any documents, papers, correspondence, or files bearing upon those points. When, if at all, it appears that the defendants have papers containing matters necessary for the plaintiff to know to enable him to plead, it will be time
By the Court. — The portion of the order of the circuit court suppressing examination of the defendants to enable the plaintiff to plead is reversed; the.portion quashing the subpoena so far as it commands the production of the things named in the subpoena, is affirmed.