Sullivan v. Ashland Light, Power & Street Railway Co.

KeewiN, J. The affidavit for examination of appellant is set ont in substance in the statement of facts, and is in compliance with the statute for examination before issue joined under sec. 4096, Stats., as amended. This remedial statute has been held by this court to be a highly beneficial one, and one to be liberally construed. Schmidt v. Menasha W. W. Co. 92 Wis. 529, 66 N. W. 695; Heckendorn v. Romadka, 138 Wis. 416, 120 N. W. 257. If the facts stated in the affidavit are sufficient to show that the plaintiff may be entitled to recover against the defendant and that discovery is necessary in order to enable the plaintiff to plead, that is sufficient. It is not necessary that facts sufficient to constitute a cause of action be stated. Gratz v. Parker, 137 Wis. 104, 118 N. W. 637. Nor is it even necessary that the plaintiff should know that a cause of action exists. Schmidt v. Menasha W. W. Co., supra; Ellinger v. Equitable L. A. Soc. 138 Wis. 390, 120 N. W. 235; Richards v. Allis, 82 Wis. 509, 52 N. W. 593; American F. P. Co. v. American M. Co. 151 Wis. 385, 138 N. W. 1123. It is clear under the rule of the foregoing authorities and others in this, court that the affidavit of the plaintiff is sufficient to entitle him to the examination. An affidavit of defendant Appleyard, used on motion to suppress the. examination, is relied upon by defendants. This affidavit denies some of the allegations of the plaintiff’s affidavit for examination. This counter affidavit, however, is not sufficient to defeat the examination based upon an affidavit made by the plaintiff in compliance with the statute. American F. P. Co. v. American M. Co., supra; Ellinger v. Equitable L. A. Soc., supra. True, if the affidavit of plaintiff negatived the existence of a cause of action the examination would be denied. Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066; Madison v. Madison G. & E. Co. 129 Wis. 249, 108 N. W. 65. It not only does not appear from the affidavit of plaintiff in the instant case that no cause of action exists, but on the contrary it appears from such affidavit that some kind of a. [579] cause of action does exist. As to wbat cause of action shall be stated -against the defendants can be determined after the examination before issue joined. And after the plaintiff’s pleading is put in, the court can determine whether a cause of action is stated against all of the defendants. It is also insisted by counsel for appellants that the plaintiff has sufficient information to enable him to draw some kind of a complaint in very general terms. But the plaintiff is entitled to all information sufficient to enable him to draw the particular complaint which he desires to draw upon the facts' elicited by the examination. It is quite apparent from the affidavit that such information he has not got, but seeks to obtain it in the manner pointed out by the statute. Even if it be assumed that the plaintiff has -a cause of action against some of the defendants, although he believes he has a cause of action against all, he has a right to the examination for the purpose of discovering the facts as to who -are and who are not liable and the nature of his cause of action, and the examination should be continued for that purpose and not dismissed as to any defendant until such discovery be had. The counter affidavit of defendant purporting to put in issue some of the allegations of the affidavit of plaintiff, together with the able and exhaustive brief of appellants on the rights and remedies of plaintiff and reviewing the difficulties involved respecting what the remedy of the plaintiff is under the facts alleged in the plaintiff’s affidavit for discovery demonstrate the wisdom of the liberal rule of this court regarding examination before issue joined under sec. 4096, Stats., as amended. The liberal rule is so well established by the decisions of this court that further discussion of it would seem unnecessary. It follows, therefore, that the court below was right in denying the motion to dismiss the action as to any of the defendants ; and also in ordering the examination of defendant Appleyard to be continued and that he be required to appear and submit to examination before issue joined. By the Court. — The orders appealed from are affirmed.