Fields v. . Coleman

*14 AlleN, J. The plaintiff is not asking for an examination' of the defendants, after pleadings filed, preparatory to a trial, but that may examine them to elicit certain information to enable him to file his complaint, and, as was said by Justice Walker in Bailey v. Matthews, 156 N. C., 81: “In a proceeding of this kind, it is of the first importance that the application for an order of examination should be under oath, stating facts which will show the nature of the cause of action, so that the relevancy of the testimony may be seen and the court may otherwise act intelligently in the matter, and it should appear in some way, or upon the facts alleged, that it is material and necessary that the examination should be had and that the information desired is not already accessible to the’applicant. It should also appear that the motion is made honestly and in good faith and not maliciously — in other words, that it is meritorious. 8 Ene. 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 the evidence sought to be elicited is immaterial, or the application appears to be made in bad faith. It is but just and right that the application should be made under the obligation and. responsibility of an oath -to protect the respondent against false and malicious accusations and vexatious proceedings. The law will not permit a party to spread a drag-net for his adversary in the suit, in order to gather facts upon which he may be sued, nor will it countenance any attempt, under the guise of a fair examination, to harass or oppress his opponent.” Tested by this principle, the ruling of the clerk revoking the order for an examination, and of his Honor confirming his judgment, were in accordance with law. The affidavit’ of the plaintiff shows that this action is brought, for- that the defendants had conspired to injure Ms character by preferring false charges against him, and securing his exclusion from his church, and the information he is trying to procure is the production of certain letters alleged to have been written by the defendant Coleman to a woman, which he says will prove an immoral relationship existing between them. He does not allege that he does not know what charges were made *15 against him, and it is not conceivable that he does not, and the materiality of the letters to his cause of action does not appear. If so, he has sufficient information for preparing his complaint, and the letters are not material for that purpose. We find no error. Affirmed.