State v. Baetz

Examination of defendants to enable plaintiff to plead. 1. In an action by the state against a former state treasurer. and the sureties on his official bond to recover interest alleged to have been received by him on state funds deposited in banks, an examination of the defendants, under sec. 4096, S. & B. Ann. Stats., for the purpose of enabling the plaintiff to frame its complaint, was properly allowed upon an affidavit showing that, while plaintiff knew the aggregate amount of moneys deposited in banks during each quarter of the treasurer’s term of office, it did not know the banks where it was deposited, the rates of interest received thereon, the dates of the deposits, the duration or terms of the deposits, the amounts received therefor by the treasurer, nor the proportion of such deposits which properly belonged to the general fund and to the various trust funds in the custody of the treasurer. 2. The sureties, being parties to the action, cannot be relieved from an examination.

APPEAL from the Circuit Court for Dane County. Plaintiff sues to recover interest moneys on state funds deposited in banks, alleged to have been received by defendant Baetz while state treasurer, and not accounted for. The remaining defendants are sureties upon Baetz's official bond. The summons was served without complaint, and an affidavit was also served, upon which notice of the examination of defendants Baetz, Pabst, and Pritzlaffi under sec. 4096, S. & E. Ann. Stats.,1 was given. The affidavit was long and showed that, while plaintiff knew the aggregate amounts of moneys deposited in banks during each quarter of Baetz's term of office, it did not know the banks where it was deposited, the rates of interest received thereon, the dates of the deposits, the duration nor terms of the deposits, the amounts received therefor by Baetz, the proportion of such deposits which properly belonged to the general fund and to the various trust funds in the custody of the treasurer. The plaintiff’s claim is that the defendants’ examination upon these points is necessary to enable it to frame a complaint. The defendants claim that the affidavit shows that no such examination is necessary, and they made a motion in the circuit court that the examination be forbidden, or that it be restricted to the defendant Baetz alone, and confined to such points of inquiry as in the judgment of the court may be necessary to enable plaintiff to frame a complaint. From an order denying this motion, defendants appeal. They con- • tended, inter alia, that the affidavit shows the plaintiff to be in possession of all the facts required to frame a complaint either for breach' of the bond or for an accounting. Full knowledge of everything is shown except accuracy of figures. All that can be alleged as an excuse for an examination is that plaintiff is not able to state the ad damnum with accuracy. As to the sureties there is no presumption of law, and there is certainly no intimation of fact, that disclosures on their part are required to enable the state to frame a proper complaint.