Clarke v. Nebraska National Bank

• Decision Date: 02 December 1896
• Docket Number: 8590
• Citation: 69 N.W. 104,49 Neb. 800
• Parties: H. T. CLARKE v. NEBRASKA NATIONAL BANK
• Court: Nebraska Supreme Court

69 N.W. 104

49 Neb. 800

H. T. CLARKE v. NEBRASKA NATIONAL BANK

No. 8590

Supreme Court of Nebraska

December 2, 1896

MOTION by defendant in error to dismiss proceeding in error. Motion overruled.

MOTION OVERRULED.

Warren Switzler, for the motion.

John L Webster, contra.

RAGAN C. RYAN, C. NORVAL, J. dissenting.

OPINION

Cases cited by counsel are referred to in the opinions.

RAGAN C. J.

In the district court of Douglas county the Nebraska National Bank obtained a judgment against Henry T. Clarke and others for $ . Some time after this an affidavit was filed in that court which recited the obtaining of the judgment; that an execution had been issued thereon and returned wholly unsatisfied; that an alias execution had been issued and was then in the hands of the sheriff; that the defendants Clarke and others had property which they unjustly refused to apply upon the judgment; that they had no personal or real property subject to levy on execution, and that certain named persons and corporations within Douglas county were indebted to Clarke and others. Thereupon the court made an order requiring the defendant Henry T. Clarke to appear before it at a time and place named and answer under oath all such questions concerning his property as might be propounded to him. Clarke appeared and moved to vacate this order. This motion the court overruled, to which Clarke took an exception, and to reverse this action of the district court has prosecuted here a petition in error.

The defendant in error has filed a motion to dismiss the error proceeding, on the ground that the order made by the district court overruling Clarke's motion to vacate its first order is not appealable. The proceedings of the bank against Clarke are based on sections 534 and 538 of the Code of Civil Procedure.

1. It is obvious that Clarke could not take an exception to, nor prosecute error from, the order made by the court for him to appear and submit to examination, as that order was made ex parte and without notice. Clarke, therefore, has pursued the proper practice in filing a motion to vacate the order requiring him to appear for examination, and taking an exception to and prosecuting error from the order of the court overruling his motion to vacate the order for examination. (See Palen v. Bushnell, 68 Hun [N.Y.] 554, 22 N.Y.S. 1044.)

2. Is the order made by the district court overruling Clarke's motion to vacate the order for his appearance and examination an appealable order? Section 581 of the Code of Civil Procedure provides: "An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified, or reversed, as provided in this title." The order under consideration was made in a special proceeding. The order was made upon a summary application in an action after judgment therein. The remaining inquiry, then, is, did the order affect a substantial right? A substantial right is an essential legal right, not a mere technical one. The object of this proceeding is to compel the defendant, against whom a judgment has been rendered, to make a disclosure of his private affairs, of his business, of his property credits, and of his business relations and dealings with others. Section 7, article 1, of the constitution of this state provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated," etc. And it seems that an order of a court or judge compelling the citizen to disclose his private affairs, to make an exemplification of his credits and effects and papers, and to disclose his secret business relations and dealings with others, is, on the face of it, an order affecting a substantial right. Since the citizen is guarantied the right of security for his papers and effects against unreasonable searches and seizures, he has the right to keep the existence of these papers and effects secret from the world, unless required by due process of law to make disclosures concerning them. But the requirement of the law that he shall make disclosures concerning his papers and effects and his private business affects his substantial rights.

Section 581 of our Code seems to have been taken from the Code of Ohio, but we have not been able to find any case in which the supreme court of that state has passed upon the question under consideration here. The Code of New York is substantially like ours. And in Francis v. Porter, 88 Hun [N.Y.] 325, 34 N.Y.S. 752, it was held that an order directing a reference to ascertain what books and papers defendant had the power to produce for inspection affects a substantial right and is reviewable.

In Re Slingerland, 36 Hun [N.Y.] 575, an order had been issued by an inferior court requiring the appellant to appear and be examined as to certain articles of personal property alleged to be in his possession belonging to an estate in controversy in that court. The order, like the one here, was a mere order to appear and be examined. The party against whom the order was made appealed therefrom to the supreme court, and the point was there made that the order was not appealable. The court said: "That the order for examination affects a substantial right can hardly be doubted. If the appellant shows that it should not have been granted, then the refusal to set it aside affects a substantial right. The motion to set the order aside is not analogous to a motion to dismiss a complaint on the trial. Here an order of the court has been granted. If improperly, it should not stand. To require the appellant to go through with the examination and then appeal would be to deny him any redress. He claims that on the facts shown he should not be examined. * * * It could never be held that, under such an order, the party must submit to the examination and afterwards appeal."

In Lamonte v. Pierce, 34 Wis. 483, the defendant was ordered to appear and make disclosure in proceedings supplemental to execution. He refused to appear and the court attached him for contempt. After he was arrested he moved the court to set aside its former order. This was overruled and he took an appeal from the order of the court overruling his motion. The court said: "It is objected that the order appealed from is not appealable under the statute. But we think this objection clearly untenable. The order belongs to the second class of appealable orders specified in section * * * being a final order affecting a substantial right made in special proceedings, or upon a summary application in an action after judgment. * * * It is said that the order appealed from is not final, within the meaning of the statute, since it does not adjudge the defendant guilty of a contempt, but merely refuses to set aside an interlocutory order previously made. But it is very obvious that the practical effect of the order is to continue in force the attachment, and that the defendant is liable to be punished for his contempt unless he can purge himself of the charge on the hearing. The fact that further proceedings will necessarily be taken does not render the order which was made any the less final and conclusive upon the question decided."

Martin v. Windsor Hotel Co. 70 N.Y. 101, was an action on account for professional services. The court made an order referring the case, upon an affidavit being filed that the trial involved the examination of an account. From this order Martin appealed. The question was whether the order of reference was an appealable order. The court of appeals decided that it was, saying: "An order of reference is an order affecting a substantial right, as the mode of trial of an action, whether by jury or by referee, is a matter of substance, and such an order is appealable," etc. The decision of the court was based on section 349 of the Code of New York, which provides: "An order is appealable * * * when it involves the merits of the action or some part thereof, or affects a substantial right."

In Barber v. Briscoe, 9 Mont. 341, 23 P. 726, the supreme court of Montana held: "An order refusing to set aside an order of examination of a judgment debtor in proceedings supplementary to execution is appealable."

A statute of the state of Oregon provides: "When the governor is informed, or has reason to believe, that any banking institution holds funds of any kind which have escheated to the state, he shall direct the proper district attorney to file a bill of discovery, with proper interrogatories to be answered by such bank." The state of Oregon filed such a bill against the Security Savings & Trust Company, alleging that the trust company was a corporation existing under the laws of the state and engaged in banking business, and had been for some years; that during the time it had been in business sundry persons had made deposits of money in said bank and died intestate, without heirs, leaving said moneys on deposit in said bank; that these sums of money had escheated to the state of Oregon; that in order to recover such escheated property it was necessary to bring and maintain an action at law; and that in order to enable the state to do so it was necessary for it to learn from the trust company the names of such depositors and the amount of money deposited by each; that the state intended and proposed, as directed by the governor, to commence an action at law to recover the said deposits which had escheated; that the state was unable to bring and maintain this law action without full discovery from the bank. The prayer of the...