Kentucky Fin. Corp. v. Allen
| Decision Date | 01 June 1920 |
| Parties | KENTUCKY FINANCE CORPORATION, INC., v. ALLEN ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.
Action by Kentucky Finance Corporation, Incorporated, against C. H. Allen and the Paramount Auto Exchange Corporation. From an order requiring the secretary of plaintiff corporation to submit to an adverse examination and from an order dismissing the complaint, plaintiff appeals. Affirmed.
Plaintiff is a corporation organized under the laws of, existing and doing business in, the state of Kentucky. Defendant corporation is of Wisconsin. Plaintiff instituted in the circuit court for Milwaukee county a replevin action based upon allegations to the effect that it was the owner of and lawfully entitled to a certain automobile; that about July 1, 1918, at the city of Louisville, Ky., the defendant C. H. Allen wrongfully took the said automobile from plaintiff's possession and unlawfully and fraudulently absconded with the same and brought it to the city of Milwaukee; that a few days thereafter the defendant Allen unlawfully and fraudulently delivered the automobile to the defendant corporation which still holds the same.
The defendant Allen is in default. The defendant corporation, appearing in said action, within due time moved the court for an order requiring one Boswell, at the time of the alleged conversion of the automobile and at the time of the motion secretary of the plaintiff corporation, to submit to an adverse examination and to produce papers, books, records, and matters in his possession as such secretary or under his control pertaining to the matters relevant to the controversy and pursuant to subdivision 7 of section 4096, Stats. Notice of the application for such order was duly served upon plaintiff's attorneys and the matter heard before said court, at which time the plaintiff appeared in open court through its attorneys, and for itself and for its said secretary Boswell consented to an examination of said Boswell pursuant to the terms and provisions of the said statute,but at the city of Louisville, Ky., the residence of said corporation and of said Boswell, before any officer at any time which might be designated by the court.
An order was then made fixing a time and place within the city of Milwaukee for the examination of said Boswell as said secretary and requiring his attendance to submit to such examination and to have with him all papers, books, records, etc., in his possession or under his control as such secretary relevant to the controversy. The order further required that the defendant should, five days before the time set for the hearing, pay to plaintiff's attorneys Boswell's fare from the southern state line of Wisconsin to Milwaukee and return and the sum of $1.50 as witness' fees.
At the time fixed for such examination said Boswell failed to appear, and no appearance was made at said time by the plaintiff; its attorneys having theretofore notified defendant's attorneys that Mr. Boswell would not appear at such hearing in Milwaukee. Thereupon, upon further showing to the circuit court by report from the court commissioner, an application was duly made to the circuit court by defendant for an order striking out the plaintiff's complaint and dismissing the cause of action with costs. On the hearing of such application appearance was made on behalf of both parties and an order entered striking out plaintiff's complaint from the files and dismissing plaintiff's cause of action, with costs. From both of such orders plaintiff has appealed.
Bloodgood, Kemper & Bloodgood, of Milwaukee, for appellant.
Doerfler, Green, Bender & McIntyre, of Milwaukee, for respondents.
ESCHWEILER, J. (after stating the facts as above).
Defendants justify the order requiring plaintiff's secretary, a resident of Louisville, in the state of Kentucky, under the laws of which state the plaintiff corporation was organized and doing business, to appear for examination at Milwaukee and to produce plaintiff's books and papers, as being a proper exercise of the power vested in the trial court under the provisions of subdivision 7 of section 4096, Stats., which reads as follows:
The second order appealed from which struck out plaintiff's complaint and dismissed his action for default in compliance with the preceding order is claimed to be justified under the provisions of subdivision 2 of section 4097, Stats., which reads as follows:
“(2) If any officer, agent, or employé or any person who was such officer, agent, or employé of a foreign corporation, at the time of the occurrence of the acts made the subject of the examination, be lawfully required to appear and testify, as provided in this chapter, either within or without the state, shall refuse and neglect so to do; or, if such person, when lawfully required, shall refuse and neglect to have with him any papers, books, files, records, things and matters in the possession of such party relevant to the controversy, such party may be punished as for a contempt and in the discretion of the court the pleading of such foreign corporation stricken out, and judgment given against it as upon the fault or failure of proof.”
Plaintiff contends: First, that the said orders constituted an abuse of judicial discretion; and, secondly, that each of the statutes above quoted are unconstitutional, in that they violate the Fifth and Fourteenth Amendments to the United States Constitution. The first objection is not insisted upon in this court, the parties being desirous of having a determination upon the second point.
[1] The plaintiff cannot rely upon a claim that any such right as here asserted is secured to it under the Fifth Amendment to the United States...
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