Frawley v. Cosgrove

Cassoday, J. On the presentation of the plaintiff’s claim to the county court, the same was contested by the administrator. Thereupon the administrator sought to examine the plaintiff “ otherwise than as a witness on a tidal,” under sec. 4096, E. S., as amended, and subpoenaed him to appear before a circuit court commissioner for that purpose. lie appeared, but refused to be sworn or examined. The only question here presented is whether the section of the statute cited is applicable to such a case. Among other things, it provides that “ no action to obtain a discovery under oath, in aid of the prosecution or defense of (mother action, shall be allowed; but the examination of á party, . . . otherwise than as a witness on a trial, may be taken by deposition at the instance of the adverse party, in any action or proceeding, at any time after the commencement thereof and before judgment.” The section further provides, in effect, “ that such deposition may be taken before a judge at chambers on a previous notice,” etc.; “ or it may be taken without the state upon commission, in the manner provided for taking other depositions.” Such examination may be taken “ before issue joined, but such examination shall not [443] preclude the right to another examination after issue joined, upon all the issues in the cause, and the party examining shall, in all cases, be allowed to examine upon oral interrogatories. Such examination shall not be compelled in any other county than that in which the party to be examined resides,” except when he is a nonresident. “ In any examination under the provisions of this section, the judge or commissioner before whom the same is had shall have power and authority to compel the party examined to answer all questions relevant to the issues involved, and also to compel the production by the party examined of books and papers relevant and pertinent to the issues, and may enforce such answers and the production of such books and papers by contempt proceedings.” This court has frequently held that the examination thus authorized was intended as a substitute for a bill of discovery under the old practice, and,being remedial,should be liberally construed. Cleveland v. Burnham, 60 Wis. 21; Kelly v. C. & N. W. R. Co. 60 Wis. 489. The object of the section was to abolish not only the form, but also the substance, of the old bill of discovery, and to enable the party to obtain the benefits of the bill, and also a more ample remedy, by taking the deposition of the adverse party as a witness in the case upon all questions involved in the issues. Whereatt v. Ellis, 65 Wis. 639. The old bill of discovery was filed in a court of equity in aid of proceedings in another court of separate and independent jurisdiction. Clark v. Bergenthal, 52 Wis. 106; Kelly v. C. & N. W. R. Co. 60 Wis. 484. Here the discovery sought is in aid of the defense to the allowance of the plaintiff’s claim in the county court. The presentation of the claim to the county court is to be deemed the commencement of an action, within the meaning of the statutes of limitation. Sec. 4242, R. S.; Boyce v. Foote, 19 Wis. 199; Jones v. Keep’s Estate, 23 Wis. 45. It seems to be, in effect, a civil action or suit at law. Clark v. Bever, [444] 139 U. S. 96; McBride's Appeal, 72 Pa. St. 480. If it is not a civil action or suit at law, it is at least a “ proceeding ” within the meaning of that clause of sec. 4096, R. S. which authorizes the taking of the “ deposition at the instance of the adverse party, in any action or proceeding? Such being the nature of the plaintiff’s claim, and the purpose of the proposed examination being to discover the facts as to the transactions between him and the intestate, in aid of the defense of such claim, there would seem to be no valid objection to such examination, unless it be merely because the allowance of the claim is pending in the county court, and the proposed examination is to be had before a commissioner of the circuit court. Under the old practice, a suit in equity for discovery could be maintained in aid of proceedings in any common-law court of general jurisdiction or other public tribunal of the same country which is or was by its original modes of procedure unable to compel the needed disclosure. 1 Pom. Eq. Jur. § 196; Wolf v. Wolf's Ex'r, 2 Har. & G. 382; Shotwell's Adm'rs v. Smith, 20 N. J. Eq. 79; Sweeny v. Williams, 36 N. J. Eq. 627. The pendency of an action at law is not always necessary to the maintenance of a bill of discovery. Buckner v. Ferguson, 44 Miss. 677. In Fuller v. Ingram, 5 Jur. (N. S.), 510, it was held that “ the rule that this court would not allow a bill of discovery in aid of proceedings in the ecclesiastical court does not apply to a bill of discovery in aid of proceedings in the court of probate.” Accordingly it was there held that such a suit could he maintained. The same rule ought to prevail here, since every county court in this state is a court of record. Sec. 2448, R. S. This court has frequently sanctioned a broad equitable jurisdiction in the matter of estates in county courts. Brook v. Chappell, 34 Wis. 405; Catlin v. Wheeler, 49 Wis. 507; Gardner v. Callaghan's Estate, 61 Wis. 96; Newman v. Waterman, 63 Wis. 621. And yet such jurisdiction would [445] seem to be insufficient to secure such discovery, unless sec. 4096 is applicable. There is nothing in that áection which limits its provisions to the circuit court, nor any particular court; and, moreover, it is found under the title: “ Provisions common to actions and proceedings in all courts.” The mere fact that the officer before whom such proposed examination is to be had is a commissioner of the circuit court, and not an officer of the county court, is no objection to the proposed examination, for the reason, among others, that the remedy for which the proposed examination is a substitute was usually, if not always, instituted in a court of separate and independent jurisdiction. The section requires the deposition to “ be taken before a judge at chambers,” and that “ the judge or commissioner before whom the same is had” shall have the powers therein mentioned. This court has frequently held that “a judge at chambers ” is simply a judge of a court of record acting out of court; and that the words “a judge,” or “a judge at chambers,” include “ a county judge or court commissioner.” Whereatt v. Ellis, 65 Wis. 644, and cases there cited. In that case it was held that “ such deposition may be taken by a court commissioner of the county in which the party examined resides, although the action is pending in another county.” It was, moreover, necessary to so hold, in order to make the section of the statute of general application, because it requires such examination to be had in the county in which the party to be examined resides. The ruling in that case excludes the idea that the examination must necessarily be before a judge or a commissioner of the same court in which the action is pending. By the Court.— The order of the circuit court is affirmed.