Abbitt v. Gregory

• Decision Date: 12 September 1928
• Docket Number: (No. 10.)
• Citation: 196 N.C. 9,144 S.E. 297
• Court: North Carolina Supreme Court
• Parties: ABBITT. v. GREGORY et al.

(196 N.C. 9)

144 S.E. 297

ABBITT.

v.GREGORY et al.

(No. 10.)

Supreme Court of North Carolina.

Sept. 12, 1928.

Appeal from Superior Court, Perquimans County; Moore, Special Judge.

Action by J. L. Abbitt against William N. Gregory and another. From an order for examination of defendants before trial, and for inspection of writings, defendants appeal. Appeal dismissed.

See, also, 195 N. C. 203, 141 S. E. 587.

Both complaint and answers have been duly filed in the above-entitled action, which is now pending in the superior court of Perquimans county. For the purpose of procuring evidence to be used at the trial of the action, plaintiff moved the court, upon a verified petition, for an order directing (1) that defendants each give to the plaintiff the right to inspect and to take copies of certain documents and papers described in the peti-tion, and in the possession, or under the control, of the defendants, respectively; and (2) that defendant Willis N. Gregory, and defendant the Davison Chemical Company, and certain officers of said company, named in the petition, appear at a time and place to be fixed in said order, then and there to be examined by the plaintiff, respecting the matters and things alleged in the complaint and answers. Defendants appeared at the hearing, and having filed answers to the petition, resisted plaintiff's motion. From the order entered by the court, in accordance with the prayer of the petition and the motion of plaintiff, defendants appealed to the Supreme Court.

Whedbee & Whedbee, of Hertford, Garnett, Taylor & Edwards, of Norfolk, Va., and L. I. Moore, of Newbern, for appellant Gregory.

Whedbee & Whedbee, of Hertford, Jesse N. Bowen, of Baltimore, Md., and Stephen C. Bragaw, of Washington, N. C., for appellant Chemical Co.

McMullan & Le Roy and Ehringhaus & Hall, all of Elizabeth City, Willcox, Cooke & Willcox, of Norfolk, Va., and Battle & Winslow, of Rocky Mount, for appellee.

CONNOR, J. It is provided by statute in this state that a party to an action may be examined as a witness at any time before the trial of the action, at the option of the party claiming the right to such examination, before a judge, commissioner duly appointed to take depositions, or before the clerk of the court, on a previous notice to the party to be examined and any other adverse party, of at least five days, unless for good cause shown the judge or court orders otherwise. Where a corporation is a party to the action, this examination may be made of any of its officers or agents. The party to be examined may be compelled to attend in the same manner as a witness who is to be examined conditionally; but he shall not be compelled to attend in any county other than that of his residence, or where he may be served with summons for his attendance. If a party to an action, who has been duly summoned to appear and submit to such examination, refuses to attend and testify, he may be punished as for a contempt and his pleadings may be stricken out. C. S. § 900 et seq.

It has been held by this court that it is not necessary that a party to an action, who desires to examine an adverse party,...