Bradley Fertilizer Co. v. Taylor

Avery, J.: The statute (The Code, §§580 and 581) permits either plaintiff or defendant, upon notice, to subject the adversáry party or person adversely interested in the action to examination before the Clerk or Judge, or a com *145 missioner appointed by the Court, for the purpose of eliciting evidence in support of his contention in the controversy. LaFontaine v. Underwriters’ Association, 83 N. C., 132; Vann v. Lawrence, 111 N. C., 32 ; Helms v Green, 105 N. C., 251. The parties to an action, by waiving objection to the time or place of making it, may give validity to an. order that would otherwise be void if the Court has general jurisdiction of the controversy. But consent will not confer jurisdiction over the subject-matter of the suit upon a Court forbidden or not empowered by law to take cognizance. Har rell v. Peebles, 79 N. C., 26 ; Shackelford v. Miller, 91 N. C., 181; Hervey v. Edmunds, 68 N. C., 243; McNeill v. Hodges, 99 N. C., 248. After assenting to the order made at Goldsboro the defendant appeared before the referee in obedience to its requirements at the place designated and the hour specified. It was too late then to withdraw his assent, voluntarily given to every part of it when first made. So that the result must be the same, were we to concede that but for such assent it might have been necessary to apply to the Clerk or await the coming of the Judge into the county. Skinner v. Terry, 107 N. C., 103 ; Godwin v. Monds, 101 N. C., 354. If the commissioner had been appointed by the Judge while sitting at Chambers in Harnett county it would have been proper to have directed him to return the examination and papers under his hand and seal to the Clerk of the Superior Court of that county before the next term of the Court. The assent of the defendant to a change of verme did not otherwise change the nature of the proceeding, or dispense with the necessity for its return in the prescribed way to the proper Court. Assigning for his refusal only the insufficient reason that the proceeding was to be so certified to the Clerk, the defendant declined to answer in whole or in part many questions propounded with the pal *146 pable purpose of eliciting information, which, according to the apparently correct construction of the contract contended for by the plaintiff company, might manifestly become indispensable in filing the pleadings or prosecuting the action. The notes and mortgages executed to secure the guano sold and the books showing accounts of sales were presumably in the possession of the defendant, and yet, if the parties had not, as the plaintiff insisted, abrogated the original contract, a just settlement could not be had until these papers should be produced, nor could the plaintiff' know precisely what amount was due from defendant without access to them. The plaintiff had unquestionably the right to the aid of the Court in compelling the production of all documentary evidence necessary or pertinent in the preparation of the complaint or the development of the case on the trial. Commissioners v. Lemly, 85 N. C., 341; Austin v. Secrest, 91 N. C., 214; McLeod v. Bullard, 84 N. C., 515. By declining to answer a series of questions, calculated and intended to elicit information that seemed essential to the prosecution of the suit, and which was nevertheless within his own exclusive knowledge, and failing to assign a more substantial reason than that given for his refusal, the defendant made himself amenable, as for contempt, and liable to be attached and punished, and the Judge not only had the power but it was his duty to maintain the authority of the Court by compelling a compliance with its lawful orders. LaFontaine v. Underwriters’ Association, supra. The commissioner was acting for the Court and it was the duty of the defendant to answer proper questions propounded by him, just as though the examination had been conducted before the Judge or Clerk. The Code, §1362, provides that “ Commissioners to take depositions appointed by the Courts of this State or by the Courts of the States *147 and Territories of the United States, arbitrators, referees and all persons acting under a commission issuing from any court of record of this State are hereby empowered to issue subpoenas, etc., and to administer oaths to said witnesses to the end that they may give their testimony, * * * and • any witness appearing before any of the said persons and refusing to give his testimony on oath touching such matters as he may be lawfully examined unto, shall be committed, by warrant of the person before whom he shall so refuse, to the common jail of the county, there to remain until he may be willing to give his evidence.” Whether the person (Pearsall),, before whom the examination was had, had the authority to commit the defendant or not, it is.certain that the power if it existed was not exclusive. The section quoted was in any view only'directory, and the commissioner might invoke the power of the Judge, whose authority had been defied when the witness declined to submit to an examination which had been ordered, even though, under the statute, he was himself clothed with concurrent authority to compel the witness to answer. In Commissioners v. Lemly, supra, the Clerk of the Court issued a summons to the defendant to appear before him and produce certain books and papers, and though he, under the statute (C. C. P., 334; The Code, §581), was clothed with precisely the same authority as the Judge, yet, declining to exercise it, he allowed an appeal from his order overruling the defendant’s objections, and left the Court in term time to deal with the question of contempt. The order of the Clerk was affirmed in the Superior Court, but no motion was made to attach the defendant. On appeal Chief Justice Smith, for the Court, said : “ We should have some hesitancy in sustaining the appeal but that the plaintiffs are deprived of important evidence to sustain their action and the .cause may still proceed in making full *148 preparations for the trial notwithstanding the appeal.” In State v. Wylde, 110 N. C., 500, the appeal was dismissed for a fatal defect in the prosecution bond, and the point really involved in Vann v. Lawrence, 111 N. C., 32, if the appellant had had a status in this Court, would have been whether it was necessary to obtain leave of Court below to take the examination of an adverse party previous to the trial and before 'the Clerk. In the case of Commissioners v. Lemly, supra, the jurisdiction of this Court to review the order of the Court below depending upon precisely the same question that is involved in that at bar, was drawn in question. The defendant had appealed from the order of the person before whom the examination was had, overruling his objection to producing the papers and making the disclosures required. The opinion in Vann’s case must not be misunderstood as overruling Lemly’s case. In Guilford County v. The Georgia Company, 109 N. C., 310, the appeal was from a ruling that the summons was not properly served, and the case is no more analogous to ours than Vann v. Lawrence. In Vaim’s case the Court suggest a criterion for testing the question whether an appeal lies from any interlocutory order, which is perhaps the safest that we can adopt. It is involved in the question whether the delay in reviewing the ruling-excepted to, till after final judgment, would probably subject either of the parties to irreparable loss by depriving him of protection to his rights, which a subsequent appeal could not afford. 1 Freeman Judgment, sec. 35. If a plaintiff is put to a disadvantage in the prosecution of a suit for want of information within the exclusive knowledge of the defendant and which he had a right to elicit, by the refusal of the latter to answer on examination, a ruling upon his exception at the close of a long contest conducted in the dark, that he can begin de novo and get the information *149 essential to bis success, is only less satisfactory than that of a defendant who has been subjected to criminal punishment by reason of his own enforced disclosures on such examination before the appellate Court informs-him of his right to withhold them. We do not think it necessary to overrule the decision in Commissioners v. Lemly, which involved the precise point raised in this case, by dismissing the appeal as premature. It is unsafe to forecast future developments and declare that a question involving the most vital rights of parties may not arise on an inquisitorial examination, allowed before the enactment of The Code only in Courts of Equity and there guarded bjr well-defined rules limiting the scope of the interrogation for the protection of the rights of the person subjected to it. ■ While, therefore, as a general .rule, this Court discountenances fragmentary appeals, yet, where the issue involved is whether a plaintiff shall compel a discovery of information peculiarly within the knowledge of the defendant and essential to the successful prosecution of a suit, in which he showed an apparent right to recover, as well as where the party being examined is about to be compelled to give evidence that will expose him to prosecution for crime or to allow the plaintiff to pry into his defence by eliciting information in no way essential to the support of his own cause, the ruling of the Court below is always subject to review, because it involves a substantial right. Cooley Const. Lim., marg. p. 374; Adams’ Eq., pp. 2 to 4; Thompson on Trials, sec. 744^ 1 Pom. Eq. Jur., sec. 201. The commissioner, upon the refusal of the defendant to answer, sent the proceedings before him to the Judge of the district at Chambers, who at first returned them without action. Whereupon the plaintiff obtained an order that the defendant appear before the Judge at Chambers in Goldsboro and show cause -why he should not be attached. *150 On failure of the defendant to appear in obedience to this order, it was adjudged by the Court at Chambers that the defendant turn over the notes, etc., received for guano sold for the plaintiff company, and that the Sheriff arrest the said defendant and commit him to jail till he comply with the order of the Court. Being brought in the prescribed mode before the commissioner, the defendant in refusing to answer unquestionably rendered himself liable to be punished as for contempt under the express provision of the statute. The Coda, §654 (4). But, if the subsection referred to had been omitted, courts of record are empowered by another subsection, section 654 (7), to punish as for contempt “in all other cases where attachments and proceedings as for contempt have been heretofore (before 1868) adopted and practiced in courts of record in this State, to enforce the civil remedies or protect the rights of any party to an action.” Before that, either the Superior Court or a commissioner appointed by it, could punish for contempt a witness who declined to answer a proper question propounded to him on examination before the latter. Rev. Code, ch. 31, sec. 64; The Code, §1362. The old statute is still unrepealed and in nowise conflicts with the later enactment. The power given carries with it, by necessary implication, authority to pursue the practice adopted before 1868, in so far as it had not been abolished by the Constitution or statutes, if necessary to the enforcement of the remedies and the protection of the rights relating to the conduct of the action. As we have shown, it was impossible to afford adequate redress or such relief as would have been given by a Court of Equity, on a bill of discovery in aid of another action at law, to the plaintiff without compelling the defendant to make disclosures of his dealing, as agent or trustee for the plaintiff, promptly, so'as to subserve the' purpose of shaping his *151 pleadings and aiding in the preparation for trial. The cases (Bynum v. Powe, 97 N. C., 374, and McNeill v. Hodges, 99 N. C., 248) cited by counsel'to sustain his contention that the order to attach for contefhpt was void, if made • outside of Harnett county (whore the action was pending), though within the judicial district, have no application to the point presented here. A dmitting that the authority of the Judges to make interlocutory orders, outside of such county and without consent of parties, is restricted to cases where they derive their power from some provision of our statutes, it is nevertheless a well-established principle that a statutory provision, clothing a Court with certain authority, implies a grant of power, in exercising it, to compel obedience to its decrees by promptly resorting to attachment, if necessary to do so, in order that the ends of justice may not be defeated by the delay incident to such defiance. If we concede the general rule, cases where the authority to make interlocutory orders is conferred by necessary implication as incident to the exercise of powers given, as well as where it is granted in express terms, constitute exceptions to it. McPhail v. Parker, decided at this term; Young v. Rollins, 90 N. C., 125 ; Pain v. Pain, 80 N. C., 322. In substituting an examination for a bill of discovery the Legislature intended to expedite trials by allowing the plaintiff to acquire information in vacation, and prepare his pleadings in advance of an approaching term. The proceeding is ancillary to the main action, and therefore the spirit of The Code, as well as the letter of the rule prescribed in McPhail v. Parker, warranted the Judge in making a proper order at Goldsboro, within the district. It was error, however, to direct the Sheriff to commit the defendant to jail till he should be willing to answer, leaving him to determine how his prisoner should sufficiently demonstrate his willingness, or what was such a compliance *152 with the order as to j ustify his release. Such an order involved necessarily an attempted delegation of judicial power to the executive officer of the Court, and to that extent was void. Strickland v. Cox, 102 N. C., 411; In re Deaton, 105 N. C., 59. When the defendant refused to appear upon notice that he was required to show caus.e, he was in’ contempt, and the order should have directed the issuing of a capias, which was the process issued by the Court of Equity under such circumstances (3 Blk., marg. pp. 443, 444), or, in consonance with the spirit of The Code, he could have made an order that Tajdor be arrested and brought before him to answer as for contempt. The judgment, therefore, should be so modified as to direct the Sheriff to arrest the defendant, and him safely keep, so that he have him before the Judge at Chambers at a time and place specified, or before the Court at next term, to answer as for contempt in disobeying the order. ■ Let this opinion be certified to the end that judgment may be rendered accordingly. The defendant must pay the costs of the appeal. Judgment Modified.