Chesson v. Washington County Bank

Stacy, C. J. The order of examination, from which the defendants appeal, was entered on motion in the cause, made by plaintiffs under authority of C. S., 900 et'seq., to procure information for the drafting of their complaint. According to the decisions, dealing directly with the subject, it has been held that, after the commencement of an action, a preliminary examination of the defendant may be had by the plaintiff, (1) before filing complaint, if it be made to appear that such is necessary to enable the plaintiff to draft his complaint (Holt v. Warehouse Co., 116 N. C., 480) ; and (2) after pleadings have been filed, the plaintiff may cause the defendant to be examined, tO' the end that he may procure evidence for the trial. Vann v. Lawrence, 111 N. C., 32. Likewise, the defendant may have the plaintiff examined (1) before filing answer, if it be made to appear that such is necessary to enable the defendant to draft his answer, especially if an affirmative defense *189 or counterclaim is to be set up; and (2) after pleadings have been filed, tbe defendant may cause tbe plaintiff to be examined, to tbe end tbat be may procure evidence for tbe trial. Jones v. Guano Co., 180 N. C., 319. Speaking to tbe second or latter right, as affecting botb parties, Avery, J., in Helms v. Green, 105 N. C., p. 262, said: “When tbe pleadings are complete, other material facts may be elicited from an adversary by examination in support of tbe main action or tbe cross-action set up in tbe counterclaim, if tbe disclosures by way of admissions are not deemed sufficiently full. A party who puts bis adversary on tbe stand gives him an opportunity to testify in bis own behalf on cross-examination, and waives bis right of impeaching him by attacking bis credibility, but retains tbe privilege of contradicting him by testimony of other witnesses inconsistent with bis.” But in tbe instant case, plaintiffs are seeking to elicit, by examination of tbe defendants, information to enable them to draft their complaint. No affidavit appears in tbe record on which tbe motion for order of examination was made, and it is tbe approved position with us tbat such a motion should be based upon an affidavit stating tbe facts which entitle tbe plaintiffs to tbe order. Speaking directly to tbe question in Bailey v. Matthews, 156 N. C., p. 81, Walker, J., said: “In a proceeding of this kind, it is of tbe first importance tbat tbe application for an order of examination should be under oath, stating facts which will show tbe nature of tbe cause of action, so tbat tbe relevancy of tbe testimony may be seen and tbe Court may otherwise act intelligently in tbe matter, and it should appear in some way, or upon tbe facts alleged, tbat it is material and necessary tbat tbe examination should be bad and tbat tbe information desired is not already accessible to tbe applicant. It should also appear tbat tbe motion is made honestly and in good faith and not maliciously — in other words, tbat it is meritorious. 8 Enc. of PI. and Pr., p. 41 et seq. Surely, a clerk or judge is not bound to grant such an order if it appears to be unnecessary, or if tbe evidence sought to be elicited is immaterial, or tbe application appears to be made in bad faith. It is but just and right tbat tbe application should be made under tbe obligation and responsibility of an oath to protect tbe respondent against false and malicious accusations and vexatious proceedings. Tbe law will not permit a party to spread a dragnet for bis adversary in tbe suit, in order to gather facts upon which be may be sued, nor will it countenance any attempt, under tbe guise of a fair examination, to harass or oppress bis opponent. It is a very rare case tbat requires tbe exercise of this function of tbe court, and tbe order should not be made without careful consideration and scrutiny.” *190 To like effect are tbe holdings in Fields v. Coleman, 160 N. C., 14; Jones v. Guano Co., 180 N. C., 319, and Monroe v. Holder, 182 N. C., 79. Tbe judge certifies, however, in response to a certiorari, issued at tbe instance of tbe plaintiffs, that, as be understood tbe order, it was entered by consent, though be allowed an exception to be noted at tbe time. -This, it will be observed, is at variance with tbe record as it appears on tbe minutes of tbe Superior Court and as certified to this Court. Under such conditions, it is tbe uniform bolding with us that tbe record proper must govern. S. v. Wheeler, 185 N. C., 670; Moore v. Moore, ibid., 332. Tbe judgment is a part of tbe record proper. Thornton v. Brady, 100 N. C., 38. Tbe plaintiffs were remiss in allowing tbe record to show an excepted order, when it was entered by consent, and they should have lodged a motion before tbe judge to have tbe judgment, as recorded, speak tbe truth. Having neglected to do this, we must dispose of tbe appeal on tbe record as it stands below and as certified to this Court. Bartholomew v. Parrish, ante, 151. Tbe order, as we are compelled to deal with it, appears to have been improvidently granted, under tbe authorities .above cited, and it is accordingly Reversed.