Cleveland v. Burnham

• Decision Date: 08 January 1884
• Citation: 60 Wis. 16,18 N.W. 190
• Parties: CLEVELAND, EX'R, ETC., AND OTHERS v. BURNHAM, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

60 Wis. 16

18 N.W. 190

CLEVELAND, EX'R, ETC., AND OTHERS

v.BURNHAM, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from county court, Milwaukee county.

The nature of this case may be ascertained from a report of it upon a former appeal. 55 Wis. 598; [S. C. 13 N. W. REP. 677, 680.] This is an appeal from an order, in effect, directing the defendant Burnham to appear before Hugh Ryan, Esq., court commissioner, and answer certain questions which he had previously refused to answer, to-wit: Question 6. Were you a stockholder of the defendant Marine Bank at any time between the twelfth day of November, 1859, and the first of April, 1862? Q. 8. Did you afterwards, (after November 12, 1859,) and before the commencement of this action, become a stockholder of said bank? Q. 11. On the third day of April, 1862, were you a stockholder in said defendant, the Marine Bank? Q. 13. Were you, at the date of the commencement of this action, a stockholder in the Marine Bank, defendant? Q. 14. Were you the owner of any amount of stock of the defendant bank at the time of the commencement of this action? Q. 15. Do you know who were the stockholders of said bank at the time of the commencement of this action? The order further directed, in effect, that if he should answer any of the questions in the affirmative, then he should answer the further question or questions, if asked, as to how much stock he held or owned in said bank at the several times mentioned; and that, after answering those questions, the plaintiffs proceed with their examination of said defendant, within the issues, until they have completed the same, before the matter should again be reported to the court; and that Burnham pay the costs of the proceedings already had before said commissioner, and also $10 costs of the motion. Before the cause was reached for argument, the plaintiff moved to dismiss the appeal on the ground that the order was not appealable. That motion was denied for the reasons given in the report of the case. 17 N. W. REP. 126. The cause was thereupon argued upon the merits.E. Mariner and Geo. H. Noyes, for respondents, Charles W. Cleveland, Ex'r, etc., and others.

Cottrill & Hanson, for appellant, Jonathan L. Burnham, impleaded, etc.

CASSODAY, J.

No action to obtain discovery under oath in aid of the prosecution or defense of another action is allowable; but the examination of a party, or, in case a corporation be a party, then of a principal officer or managing agent thereof, otherwise than as a witness on a trial, may be taken by deposition, at the instance of the adverse party, in an action or proceeding, at any time after the commencement thereof, and before judgment. Section 4096, Rev. St.; chapter 194, Laws 1882. The attendance of the party or person to be examined may be compelled as provided, and such examination is subject to the same rules as that of any other witness, but the witness is not to be compelled to disclose anything not relevant to the controversy. Id. The court, by order, may limit the subjects to which such examination may extend, otherwise disclosures are not to extend to anything not relevant to the controversy. Id. Here the order limited the subjects to which the examination might extend, to matters embraced within the issues made by the amended complaint and the answer of the defendant Burnham. The examination thus authorized was undoubtedly intended as a substitute for a bill of discovery under the old practice. The statute merely regulates a former remedy. Being remedial, it should be liberally construed. The authority to enact such statute is not seriously questioned and need not to be here considered.

In such examination of an adverse party there is a liability of his being a perverse party. For this reason the examination has been held to be in the nature of a cross-examination, and hence the range and admissibility of the questions are, to some extent, discretionary with the presiding judge. Stuart v. Allen, 45 Wis. 164. The liability of the defendant Burnham depended upon his being a stockholder of the bank at a particular time or times. If he was a stockholder at the time the action was commenced, he would seem to be liable under chapter 71, Rev. St. 1858. 55 Wis. 598; [S. C. 13 N. W. REP. 677, 680.] Prior to that decision, as there stated, this court had not decided whether one was liable or not who was a stockholder when the debt accrued, but had transferred his stock in good...