Gratz v. Parker

BakNes, J. The appellant insists that the order appealed from is erroneous (1) because a former judgment, rendered in an action brought by the same plaintiff against the defendant Adeline Parker upon the same cause of action, is res adjudícala as to the rights of the parties, and no examination should be permitted; (2) because the affidavit upon which the order for examination was based fails to state facts sufficient to constitute a cause of action; and (3) because the affidavit fails to allege that the facts upon which the testimony of the defendant is sought are not within the personal knowledge of the plaintiff. 1. The judgment rendered in the former action was entered as the result of a motion for a nonsuit, made by the defendant at the close of the plaintiff’s testimony and before [106] the defendant rested her case or offered any evidence. It was rendered because tbe trial court was of tbe opinion that, upon tbe showing made by tbe plaintiff, sbe was guilty of contributory negligence. Tbis was not a judgment of dismissal on tbe merits, but a judgment of involuntary nonsuit. Sucb a judgment is not a bar to another action brought upon the same grounds.. Tbe decided cases in tbis court are clear and uniform in so bolding. Gummer v. Omro, 50 Wis. 241, 6 N. W. 885; Morgan v. C., M. & St. P. R. Co. 83 Wis. 348, 351, 53 N. W. 141; Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739; Kaley v. Van Ostrand, 134 Wis. 443, 114 N. W. 817. Tbe first case cited is-exactly similar to tbe one under consideration. Tbe form of the judgment appears to have been alike in tbe two cases, and in each a jury was waived and a trial was bad by tbe court. 2.- Sec. 4096, Stats. (1898), provides that tbe affidavit shall state tbe general nature and object of tbe action only. It does not require that facts sufficient to constitute a cause of action shall be set forth therein. It would be just as easy to set forth sucb facts in tbe form of a pleading as in tbe form of an affidavit. If tbe plaintiff bad tbe necessary facts at band, so that sbe could set forth a cause of action in her affidavit, then, under tbe provisions of tbe statute referred to, sbe was not entitled to examine tbe defendant at all before issue was joined. Tbe very purpose of tbe examination was to secure information to enable tbe plaintiff to draft her complaint. It is not even necessary that tbe plaintiff should know that a cause of action exists. Tbe examination may be bad even though tbe affidavit shows affirmatively that plaintiff does not know. Richards v. Allis, 82 Wis. 509, 513, 52 N. W. 593; Schmidt v. Menasha W. W. Co. 92 Wis. 529, 532, 66 N. W. 695. Tbe cases of Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066; Madison v. Madison G. & E. Co. 129 Wis. 249, 260, 108 N. W. 65; and State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 116 N. W. 900, cited and [107] relied upon by appellant, simply bold that, where the affidavit affirmatively shows that no cause of action does or can exist, an examination will not be permitted. The affidavit here certainly does not negative the existence of a cause of action. 3. While it is customary to state, in an affidavit such as-the one under consideration, that the facts upon which discovery is sought are not within the knowledge of the plaintiff,, still that statute does not require such an averment to be made. The affidavit follows the language of the statute, and this court would not be justified in reading a requirement into it that the legislature has not seen fit to incorporate-therein. By the Court. — The order of the circuit court is affirmed.