87 P. 1035 | Cal. | 1906
An alternative writ of mandate having been issued by this court, the respondents demur to the petition, and thus raise the question whether the following facts, set forth in the petition, are sufficient in law to authorize the granting of the relief sought.
The Union Collection Company, petitioner herein, commenced an action in the superior court of the city and county of San Francisco against some two hundred and forty defendants, stockholders of the El Dorado Exploration Company, a corporation, to compel the payment by such defendants of the unpaid subscription price of their shares for the purpose of satisfying a judgment against said El Dorado Exploration Company, held by petitioner. Summons was issued, and was served on some of the defendants, but petitioner has been unable to ascertain the whereabouts of many of the defendants, and these have consequently not been served, nor have they appeared in the action.
In order to get the information necessary to enable it to make service, the petitioner filed in the superior court an affidavit alleging that it could not ascertain the whereabouts of many of the defendants not served except by examining persons connected with the El Dorado Exploration Company; that one of such persons was Mrs. Elizabeth M. Ustick, who refused to give any information which would enable the petitioner *792 to cause summons to be served, and praying for an order requiring Mrs. Ustick to appear before the court to be examined "concerning her knowledge as to the whereabouts of the defendants not served." An order was made as asked, and a subpœna issued and served on Mrs. Ustick. She appeared at the time set and objected to the court proceeding in the matter upon the ground that the court had no jurisdiction. The court sustained her objection, refused to cause her to be sworn, and ordered that she be discharged from further appearance in the matter. The purpose of the present proceeding is to obtain a writ of mandate directing the respondent court and judge to require Mrs. Ustick to be sworn as a witness and to give her testimony in respect to the matter stated in the affidavit. The sole question to be determined is whether the superior court of this state has jurisdiction to compel the defendant, or a stranger to a pending action, to appear before it prior to trial and be examined as to the whereabouts of certain defendants, in order that they may be served with summons.
It is not contended by the petitioner that the proposed examination of Mrs. Ustick was authorized by the provisions of the code relative to the taking of depositions. On the contrary, the argument is that because there is no specific statutory method applying to such a case as this the court should compel the giving of the desired information in some suitable mode to be adopted by it. This position is based upon section
If the superior court in which an action is pending has jurisdiction to compel the giving of information as to the whereabouts of defendants whom it is desired to serve with summons, it may be assumed, for the purpose of this discussion, that the "process or mode of proceeding" employed was suitable and conformable to the spirit of the code. But section
The alleged power is sought to be derived from the constitutional grant to the superior courts of jurisdiction in "all cases in equity" (Const., art. VI, sec. 5), including, as is claimed, the power to entertain proceedings in the nature of bills of discovery. It is not necessary here to decide the question adverted to, but not definitely determined, in Wright v.Superior Court,
Is the present case one for a discovery under these rules? We think not. A bill of discovery seeks the disclosure of facts within the knowledge of the defendant, or of papers in his possession, in aid of some other action or proceeding. The discovery may be sought in the same suit in which the ultimate relief is pursued, or it may be sought merely in aid of some other proceeding pending or to be brought. But whether the bill be for discovery and relief, or for discovery only, it is well settled that the matters as to which discovery is sought must be material to the existing suit or to the one which is to be instituted. (6 Ency. of Plead. Prac., 740; Bispham on Principles of Equity, 4th ed., sec. 560; 1 Pomeroy's Equity Jurisprudence, 3rd ed., sec. 201. See, also, many cases cited in 16 Century Digest, cols. 1991, 1992.) Here the action in aid of which the plaintiff claims the right to a discovery was already pending. The matters as to which disclosure is sought are in no way material to the issues presented by the main action in the court below, and a disclosure of them will not assist the plaintiff therein (petitioner here) in establishing its case. The facts constituting the cause of action are fully *794
known to the plaintiff, and have been set forth by it in its complaint. What it seeks now is not the disclosure of facts relevant to the cause of action or which will assist in establishing it, but of facts, entirely collateral to the merits, which will enable it to bring defendants within the jurisdiction of the court. No case has been cited which extends the right of discovery to a state of facts such as is here presented. In Post
v. Toledo etc. R.R. Co.,
Since the information sought was not material to the action in aid of which the proceeding against Mrs. Ustick was instituted, the petitioner could not under any system of procedure have maintained a bill of discovery against her. For the same reason such petitioner was not entitled to examine her as a witness in the manner here attempted, and the court properly refused to compel her to be sworn.
The proceeding is dismissed.
Angellotti, J., Shaw, J., Henshaw, J., Lorigan, J., and McFarland, J., concurred. *795
