Cartwright v. Norfolk Southern Railroad

AlleN, J. The order of Judge Bond requires the plaintiff to appear before the commissioner for examination, and to answer, as far as able, all such questions as shall be asked by the defendant’s counsel; and as the plaintiff does not appeal from this order, she is precluded from raising an objection to its regularity because made before issue joined and without a supporting affidavit; and the only question presented for decision is as to the correctness of the ruling that the delivery to counsel for the defendants of written answers to the questions asked before the commissioner shall be a compliance with the order requiring her to submit to an examination, which ruling is, in our opinion, erroneous. *39 Tbe Bevisal (sec. 865) provides that,a party to'an action may be examined as a witness at the instance of the adverse party, and “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”; and the succeeding section authorizes this examination “at any time before the trial, at the option of the party claiming it, before a judge, commissioner- duly appointed to take depositions, or clerk of the court.” These two statutes confer the right to examine the adverse party, in proper cases, “in the same manner and subject to the same rules of examination as any other witness”; and as one has the right to be present when he examines his witness, the same right exists when a party is examined either at the trial or before a commissioner. It may be that no information will be gained on further examination that is not contained in the answers to the questions filed since the order was made, but we cannot say this is true. The defendant’s counsel might well have desisted from prolonging their examination before the commissioner until the right was declared, in face of the refusal of the plaintiff to answer any question, or the responses to the questions might suggest other lines of investigation. In any event, the defendant has the right, under the statute, to examine the plaintiff before the trial as any other witness, and this right has been denied. Appeals from orders, denying the right to examine a party, were entertained in Bailey v. Matthews, 156 N. C., 81, and in Fields v. Coleman, 160 N. C., 11, and this order comes well within the principle of these cases, since, while admitting the right to an examination, a provision is inserted in the order which enables the plaintiff to avoid its effect. The order will be modified by striking out the objectionable feature, and as modified it is affirmed. Let the costs of the Supreme Court be taxed against the plaintiff and bond. Modified and affirmed.