Gallun v. Hibernia Bank & Trust Co.

Rosenberry, J. As we view this case there is now but one question before this court, and that is whether or not the witness, Fred W. Ellsworth, was properly served with the subpcena. While the order does not recite upon what ground the service was set aside and the subpcena suppressed, it would follow that if the service were set aside then the subpoena must be suppressed. The subpoena was not served by an.office'r but by a process server. The facts are not in substantial dispute. Proof of service was made by affidavit. The facts relating to the service are as follows: “That on the 14th day of June, 1922, he [the process server] met the said Fred W. Ellsworth in the lobby of the Hotel Pfister, Milwaukee, Wisconsin. That after he had learned from Fred W. Ellsworth that that was his right name and that he was vice-president of the Hibernia Bank & Trust Company of New Orleans, he informed the.said Fred W. Ellsworth that he had some -papers he would like to serve upon him. That at the time the deponent could not have been more than-a foot and a half from the said Fred W. Ellsworth. That he had the original subpoena, together with a copy, and the originals and copies of summons in six [43] other actions, in all of which the Hibernia Bank & Trust Company was a defendant. That in his left hand he had the proper witness fees in a small roll with the change inside. That the papers, fourteen in all, were rather bulky and could not have been more than six inches to a foot from the person of Mr. Ellsworth. That they were plainly visible to the said Fred W. Ellsworth, and that deponent tendered the subpoena to the said Fred W. Ellsworth, but that the said Fred W. Ellsworth refused to take the subpoena and refused to listen to the deponent to learn of the contents. That as soon as the subpoena was tendered to him he brought his hands to his sides immediately, turned, quickly, and hurried out of the front door of the Hotel Piaster. That deponent followed him a short distance to make a second tender and to explain the papers, but that the said Fred W. Ellsworth refused to listen to him but further quickened his pace.” It further appeared that the said Fred W. Ellsworth went to the Hotel Wisconsin, was not again seen, and left the city of Milwaukee. By the affidavit of Fred W. Ells-worth filed on the motion to suppress, it appears that he became an officer of the defendant company on the 1st day of May, 1918; that prior thereto he had not been connected with the said bank in any capacity; that as vice-president he had supervision of the savings, new business, central file, research, advertising, and safe-deposit departments; that he had not the custody or possession of any of the papers described in the subpoena nor' any knowledge concerning them. The facts upon which the cause of action is based arose in November, 1916. Some question is raised as to procedure. No doubt a witness may, before he is required to answer, have the determination of á court as to whether or not the matters as to which it is proposed to examine him are material and relevant to the controversy. This is particularly true where he is required to exhibit books and papers relating to many matters other than those appertaining to the facts in dispute. This may be done either at the time an application is made for a writ to com [44] pel the attendance of the witness, or the same questions maybe properly raised, as in this case, 'by a motion to suppress the subpoena. It is to' be noted that in this case the witness did not respond to the subpoena, has not appealed to the court, and all of the proceedings have been taken by and on behalf of the defendant corporation. It is first contended that betause the plaintiff had procured an order under the seventh clause of sec. 4096, Stats., requiring the defendant to produce its books and papers and submit to an examination at a place named in the state of Louisiana, it was not entitled to examine the vice-president, Fred W. Ellsworth, although present in this state. We think this contention cannot be' sustained. The plaintiff may proceed in either way or in both ways — the one is not exclusive of the other. Kentucky F. Corp. v. Paramount Auto Exch. Corp. 171 Wis. 586, 178 N. W. 9. It is also claimed that there was not a proper service upon the witness Ellsworth. We are of the opinion that the service in this'case is good. The witness can make no complaint because the service was not more complete. It was not more complete because he made it impossible for the process server-to make it complete. Certainly the process server would not be justified in using personal violence to restrain the movements of the witness until the service could be formally completed. The subpoena was tendered to him, it was within his sight, and he was informed in a general way of its contents. His refusal to accept it and his refusal fio remain until it could be read did not relieve him of ,the obligation to attend at the time and place specified in the subpoena. Borden v. Borden, 63 Wis. 374, 23 N. W. 573. Other matters are urged by the defendant, but, the court having suppressed the subpoena because of the fact that the service was set aside, these questions are not presented by the record. These matters are largely within the discre [45] tion of the trial court and the court has not been asked -to and has not exercised its discretion in regard to them. American F. P. Co. v. American M. Co. 151 Wis. 385, 138 N. W. 1123. By the Court. — The order appealed from is reversed, and cause remanded for. further proceedings according to law.