Asplund v. Brown

• Decision Date: 25 November 1938
• Docket Number: No. 31904.,31904.
• Citation: 203 Minn. 571,282 N.W. 473
• Parties: ASPLUND et al. v. BROWN et al.
• Court: Minnesota Supreme Court

282 N.W. 473

203 Minn. 571

ASPLUND et al. v. BROWN et al.

No. 31904.

Supreme Court of Minnesota.

November 25, 1938.

Certiorari to District Court, Hennepin County; Frank E. Reed, Judge.

Action by John M. Asplund and others, on behalf of themselves and other members of General Drivers' Union, Local 544, against William Brown and others, as officers of General Drivers' Union, Local 544, for an accounting. The defendants by writ of certiorari sought review of an order directing defendants to allow plaintiffs an inspection of books, correspondence, records, and other documents. On motion of plaintiffs to quash the writ of certiorari.

Writ quashed.

Gilbert E. Carlson and John A. Goldie, both of Minneapolis, for relators.

Arthur H. Anderson, of Minneapolis, for respondents.

STONE, Justice.

This cause is before us on the motion of plaintiffs to quash a writ of certiorari issued on the petition of defendants. The latter by that writ seek review of an order, made under the statute, Mason Minn.St. 1927, § 9886, directing defendants to allow plaintiffs an inspection of books, correspondence, records and other documents.

We need not now follow the far-flung allegations of the pleadings, other than to make a brief summary of those necessary to an understanding of the decision. Plaintiffs profess to sue for themselves and other members of General Drivers Union, Local 544, with headquarters in Minneapolis. That organization is affiliated with the International Union of Teamsters, which in turn is a unit of the American Federation of Labor. Defendants are sued as officers of the local union. The charges of misconduct made by the complaint are numerous and some are of such character that, if true, plaintiffs are entitled to an accounting on behalf of themselves and other members of the local. Defendants deny all such charges, but with the resulting issue we are not now concerned. The point is, that on the pleadings, plus additional showing by affidavit, plaintiffs procured an order directing defendants to submit the enumerated documents to an inspection of the kind contemplated by the statute, with leave to make copies.

By the decision in Re Trusteeship Under Will of Melgaard, 187 Minn. 632, 246 N.W. 478, it is settled that such an order is not appealable. So much is conceded by defendants, but they argue that, in the absence of appeal, such an order is reviewable by certiorari.

That contention we must also deny, because in this state the writ of certiorari is employed as a substitute for a writ of error. Hence, it does not lie to an intermediate order. 1 Dunnell, Minn.Dig. (2 Ed. & Supps.) § 1396, and cases cited. It was expressly so held as to an order for inspection of books and papers in State of Washington ex rel. Seattle General Contract Co. v. Superior Court, 56 Wash. 649, 106 P. 150, 28 L.R.A.,N.S., 516. In the latter report there is a note indicating the generality with which the courts hold that such an order is not appealable.

There are some jurisdictions, notably Wisconsin, which, as indicated by the writer's dissent in Re Trusteeship Under Will of Melgaard, supra, consider such an order as a species of discovery and so the granting of a provisional remedy, and for that reason appealable. But plainly where, as here, it is not considered a provisional remedy, and so held not appealable, it would be an evasion of statutory law for judges to permit review by certiorari where the legislature is considered to have denied review by appeal. Under the Iowa practice, certiorari does lie to intermediate orders if they are "illegal", Davis v. District Court, 195 Iowa 688, 192 N.W. 852; Stagg v. First National Bank, 203 Iowa 84, 212 N.W. 342; Dunlop v. District Court, 214 Iowa 389, 239 N.W. 541.

This court's function of review, as created by the constitution and regulated by statute, is not to be extended by judicial action to the field of supervisory and visitorial power. We must not constitute ourselves inspectors of mere procedure and preliminary orders in a cause pending in the district court. We would do just that if by certiorari we were to indulge in the practice of interrupting proceedings in the trial court by reviewing interlocutory orders.

The legislature has pretty well covered the field of review by its detailed enumeration of the orders from which an appeal may be taken. Maso...