Ellinger v. Equitable Life Assurance Society of the United States

Cassoday, C. J.

The trial court refused to allow the defendant to examine the plaintiff, as an adverse party, under sec. 4096, Stats. 1898, in the proceedings instituted- by tlie plaintiff to compel the defendant to produce its books and papers for inspection or to furnish sworn copies thereof. In other words, the trial court stayed all proceedings on the part of the defendant under that section until after the matter of inspecting books and papers and the furnishing of sworn copies thereof should be fully determined by the court. This-was put on the ground that the section mentioned had no application to a proceeding to compel the inspection of books and papers, which was treated by the court as a mere motion. The correctness of such ruling depends upon the authority given by the statute and the nature of the proceedings which the defendant seeks to prevent. The section of the statute cited declares that “the examination of a 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 proceed ing, at any time after the commencement thereof and before judgment.” That section also provides that where the requisite notice is given, accompanied by the prescribed affidavit, stating the requisite facts, such examination may “be taken before issue joined, ... to enable the party to plead.”

“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.” Frawley v. Cosgrove, 83 Wis. 441, 443 , 63 N. W. 689 ; State v. Baetz, 86 Wis. 29, 31 , 66 N. W. 329 ; Schmidt v. Menasha W. W. Co. 92 Wis. 529, 531 , 66 N. W. 695 .

Thus construed, the word “plead,” as thus used in the statute, is not to- be limited to a complaint, answer, or reply, but may extend to a claim urged in defense of a proceeding instituted by either party in aid of an action or defense and which may be put in issue and tried.

*647 The statute declares:

“The court before which an action is pending, or a judge thereof, may, in discretion and upon due notice, order either party to give to the other, within a specified time, an inspection and copy or permission to take a copy of any books, papers and documents in his possession or under his control containing evidence relating to the merits of the action or of the defense therein.” Sec. 4183, Stats. 1898.

One of the circuit court rules provides that such application may be made “by either party to compel the other to give him inspection and a copy or permission to take a copy of any books, papers, or documents in his possession or under his control which may be necessary to enable the applicant to frame his complaint, answer, or reply, as the case may be, or which shall be material to any application made by him for any provisional remedy.” Subd. 1, sec. 1, Circuit Court Eule XIX. Sec. 2 of the same rule prescribes what the petition or affidavit must contain when the application is necessary to enable the party “to frame his complaint, answer, or reply, or to obtain some provisional remedy, or to prepare for trial, as the case may be.” True, the same rule provides that “the order to show cause on such application, as well as the-order absolute made upon showing cause, . . . shall operate as a stay of all other proceedings in the action of the party against whom it is made, until such order shall have been complied with, vacated, or reversed.” Sec. 5, Id. But such stay of “proceedings in the action" does not operate to bar such party from resisting the application to compel such inspection of such books and papers or the furnishing of sworn copies thereof. Otherwise the proceedings to compel such inspection and copies would be ex parte and the statutory requirement of giving notice to the opposite party would be without significance. The statutes divide remedies into “actions” and “special proceedings.” Sec. 2594, Stats. 1898. After defining an action the statute declares that “every other *648 remedy is a special proceeding.” Secs. 2595, 2596, Stats. 1898. .

Tbe plaintiff contends that tbe order appealed from is not appealable. Tbe defendant claims that it is appealable either as “a final order affecting a substantial right made in special proceedings,” or as “an order” that “refuses ... a provisional remedy.” Subds. 2, 3, sec. 3069, Stats. 1898. It was held by this court many years ago 'that “tbe remedy formerly procured by an ancillary suit in equity for a discovery is now granted by an order in tbe principal cause,” and that “such an order” was “a provisional remedy,” and was therefore “appealable.” Noonan v. Orton, 28 Wis. 386 . Subsequently it was held by this court that “an order requiring a party to an action to submit to an examination as a witness for tbe opposite party, being a substitute for a bill of discovery,” was “a provisional remedy,” and therefore was “appealable.” Blossom v. Ludington, 31 Wis. 283 . Mr. Justice LyoN wrote tbe opinion of tbe court in both of those cases. In commenting upon tbe first of these cases, soon after, DixoN, O. T., speaking for himself, stated “that tbe remedy for a discovery is properly called a special proceeding, and so defined by tbe statute.” Witter v. Lyon, 34 Wis. 564, 574 . In Prince v. McCarthy, 61 Wis. 3 , 20 N. W. 655 , it was held that the term “special proceedings,” as used in subd. 2, sec. 3069, Stats. 1898, is to have tbe same meaning as defined in secs. 2593 — 2596. This must necessarily be correct. In re Guardianship of Welch, 108 Wis. 387, 393 , 84 N. W. 550 ; State ex rel. Att’y Gen. v. Frost, 113 Wis. 623, 641 , 88 N. W. 912 , 89 N. W. 915 ; Deuster v. Zillmer, 119 Wis. 402, 407, 408 , 97 N. W. 31 ; State ex rel. Risch v. Trustees, 121 Wis. 44, 59 , 98 N. W. 954 ; Harrigan v. Gilchrist, 121 Wis. 127, 277 , 99 N. W. 909 . But, as tbe order in Prince v. McCarthy, supra, was made by tbe circuit judge at chambers, and not by tbe court, it was held not to be appealable. Tbe opinion in that case was also written by Mr. Justice LyoN. *649 In. Nichols v. McGeoch, 78 Wis. 360 , 47 N. W. 372 , an order of the court refusing the defendant’s application for the production of books was reversed on appeal. To the same effect: State v. Baetz, 86 Wis. 29 , 56 N. W. 329 ; Schmidt v. Menasha W. W. Co. 92 Wis. 529 , 66 N. W. 659 . In Minnesota it was held that a statute “providing for the examination of an adverse party as if under cross-examination” applies “to any proceeding involving such an issue which the parties, as a matter of right, are entitled to have heard on oral testimony.” Strom v. Montana Cent. R. Co. 81 Minn. 346 , 84 N. W. 46 . In view of the authorities cited we are constrained to hold that the proceedings instituted by the plaintiff to compel the inspection of books and papers were a provisional remedy as defined by this court in the cases cited. It has been said that “a provisional remedy is a collateral proceeding permitted only in connection with a regular action and as one of its incidents.” 6 Words & Phrases, 5752; Snavely v. Abbott R. Co. 36 Kan. 106 , 12 Pac. 522 . The language of sec. 4096 is broad, and authorizes the examination of the adverse party “otherwise than as a witness on a trial ... in any action or 'proceeding, at any time after the commencement thereof and before judgment.” The application for the inspection of books and papers was certainly a “proceeding,” and, since the order appealed from refuses a provisional remedy, we must hold that it is appeal-able under the third subdivision of sec. 3069 of the Statutes.

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings according to this opinion.