Douglas v. . Buchanan

Clarkson, J. 1. Contention of the defendants: “The defendants contend that the plaintiff has no right to examine the appealing defendants without first filing a sufficient affidavit and securing an order therefor.” 2. Contention of the plaintiff: “The plaintiff admits that if the purpose of the proposed examination were to secure information in order to enable him to prepare his complaint, the position of the defendants would be correct; but contends that when, as in this case, all the pleadings have been filed and the purpose of the examination is to secure information for the trial, no such affidavit or order is necessary, and that the plaintiff may examine the defendants as a matter of right. The plaintiff contends, therefore, that so much of Judge Phrker’s judgment is correct as held 'that the plaintiff has a right to examine said defendants as adverse parties’; 'that the appeal of said 'defehdants is premature, . . . and the appeal be and the same is hereby dismissed,’ but *667 that the judge erred in limiting the scope of the examination as set out in the latter part of the last paragraph of the judgment.” N. C. Code, 1935 (Michie), sec. 900, is as follows: “A party to an action may be examined as a witness at the instance of any adverse party, and for that purpose may be compelled, in the same manner and subject to the same rules of examination as any other witness, to testify, either at the trial or conditionally or upon commission. Where a corporation is a party to the action, this examination may be made of any of its officers or agents.” Section 901: “The examination, instead of being had at the trial, as provided in the preceding section, may be had at any time before the trial, at the opinion of the party claiming it, before a judge, commissioner duly appointed to take depositions, or clerk of the court, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless for good cause shown the judge or court ■orders otherwise.” These sections are a substitute for a bill of discovery, are remedial, and should be liberally construed. Abbitt v. Gregory, 196 N. C., 9. In Ward v. Martin, 175 N. C., 287, the facts, at p. 288, were: “The plaintiff having filed his verified complaint, moved in the cause for an order to examine defendant before the clerk prior to trial under Revisal, secs. 865, 866 (C. S., 900, 901). The clerk made the order and the defendant moved to vacate the same. The motion was denied, and defendant appealed to the Superior Court. His honor, Judge Rond,, affirmed the order of the clerk, October Term, 1917, and defendant appealed.” In the opinion (same page), it is said: “Where no complaint has been filed and the purpose of the examination is to aid in preparing the complaint, the mover must show by affidavit, such facts as will entitle him to the order. In this case the complaint has been filed and sets out a cause of action against defendant. The plaintiff then has a right under the statute to examine the defendant. No leave of court is necessary, as was the case under the old bill of discovery. That requirement is omitted from our statute. Vann v. Lawrence, 111 N. C., 34. . . . (p. 289). A motion was made to dismiss this appeal on the ground that it is premature. There are decisions of this Court holding that a party cannot appeal from an order to appear before the clerk to be examined under oath concerning the matters set out in the pleadings. Pender v. Mallett, 122 N. C., 163; Holt v. Warehouse Co., 116 N. C., 480; Vann v. Lawrence, 111 N. C., 32.” In Johnson v. Mills Co., 196 N. C., 93 (94), speaking to the subject, it is said: “When no pleadings have been filed, the plaintiff, by proper and sufficient affidavit, may apply to the court for an order of examination. Bailey v. Matthews, 156 N. C., 78, 72 S. E., 92; Fields v. Coleman, 160 N. C., 11, 75 S. E., 1005; Chesson v. Bank, 190 N. C., 187, *668 129 S. E., 403. And when a proper order for such examination has been duly made, an appeal therefrom to the Supreme Court is premature and will he dismissed. Ward v. Martin, 175 N. C., 287, 95 S. E., 621; Monroe v. Holder, 182 N. C., 79, 108 S. E., 359; Abbitt v. Gregory, ante, 9.” In Bell v. Bank, 196 N. C., 233, the facts are different and the case distinguishable from the present one. We think there was error in limiting the examination of John A. Buchanan and James Mason, Jr.— the examination is founded on the pleadings, which is broader in scope. On account of the importance of this case, we consider it on its merits, but the practice is to dismiss as premature. On the plaintiff’s appeal there is error. On the defendants’ appeal, affirmed.