Frawley v. Cosgrove

• Decision Date: 15 November 1892
• Parties: FRAWLEY v. COSGROVE.
• Court: Wisconsin Supreme Court

83 Wis. 441

53 N.W. 689

FRAWLEY

v.COSGROVE.

Supreme Court of Wisconsin.

Nov. 15, 1892.

Appeal from circuit court, Eau Claire county; W. F. BAILEY, Judge.

Submission to the county court of Eau Claire county by W. H. Frawley of a claim, under the statute, against P. J. Cosgrove, administrator of R. T. Farr, deceased. From an order requiring the claimant to appear before a commissioner of the circuit court, and be examined by the administrator, the claimant, W. H. Frawley, appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that Richard T. Farr died intestate December 29, 1890; that February 3, 1891, said Cosgrove was duly appointed administrator of said estate, and duly qualified and entered upon the duties of his office; that the time for creditors to present their claims against said estate was limited to September 1, 1891; that August 21, 1891, said Frawley filed his verified claim for services as attorney during the life of said intestate against said estate to the amount of $1,660; that a formal verified complaint was filed therein November 25, 1891, and December 1, 1891, the administrator served a verified answer, denying and traversing the same; that December 25, 1891, the administrator gave notice to the attorney of said Frawley, and also subpœnaed said Frawley to appear before a circuit court commissioner, December 30, 1891, at a place named, and submit to an examination under section 4096, Rev. St.; that, by stipulation, the time for such examination was postponed to the same place before the same officer to January 2, 1892; that January 2, 1892, the said Frawley and his attorney appeared before said commissioner, and refused to be sworn or examined; that, by reason of such refusal, January 14, 1892, the administrator, upon verified petition stating the facts, asked the county court to strike out the said claim of said Frawley; that January 26, 1892, the county court, by order, denied such application; that February 10, 1892, the administrator appealed from that order to the circuit court; that upon the hearing in the circuit court, April 25, 1892, said order of the county court was reversed, with costs, and said Frawley was ordered to appear before said commissioner, May 25, 1892, and to submit to such examination under said section, and, in case of his failure to so appear, it was ordered that his claim be stricken out, and the cause was thereby ordered to be remitted to the county court, but it was further ordered that, in case of an appeal from the order of said circuit court to this court, then the time for such examination be extended to 20 days after notice of filing the remittitur from this court; that May 18, 1892, the said Frawley duly appealed from said order of the circuit court to this court.J. C. Gores, for appellant.

Wickham & Farr, for respondent.

CASSODAY, J., ( after stating the facts.)

On the presentation of the plaintiff's claim to the county court, the same was contested by the administrator. Thereupon the administrator sought to examine the plaintiff “otherwise than as a witness on a trial,” under section 4096, Rev. St., as amended, and subpœnaed him to appear before a circuit court commissioner for that purpose. He appeared, but refused to be sworn or examined. The only question here presented is whether the section of the statute cited is applicable to such a case. Among other things, it provides that “no action to obtain a discovery under oath, in aid of the prosecution or defense of another action, shall be allowed; but the examination of a party, * * * otherwise than as a witness on a trial, may be taken by deposition at the instance of the adverse party, in any action or proceeding, at any time after the commencement thereof, and before judgment.” The section further provides, in effect, “that such deposition may be taken before a judge at chambers on a previous notice,” etc.; “or it may be taken without the state upon commission, in the manner provided for taking other depositions.” Such examination may be taken “before issue joined, but such examination shall not preclude the right to anotherexamination after issue joined, upon all the issues in the cause, and the party examining shall, in all cases, be allowed to examine upon oral interrogatories. Such examination shall not be compelled in any other county than that in which the party to be examined resides,” except when he is a nonresident. “In any examination under the provisions of this section, the judge or commissioner before whom the same is had shall have power and authority to compel the party examined to answer all questions relevant to the issues involved, and also to compel the production by the party examined of books and papers relevant and pertinent to the issues, and may enforce such answers and the production of such books and papers by contempt proceedings.” This court has frequently held that the examination thus authorized was intended as a substitute for a bill of discovery under the old practice, and, being remedial, should be liberally construed. Cleveland v. Burnham, 60 Wis. 21, 17 N. W. Rep. 126, and 18 N. W. Rep. 190;Kelly v. Railway Co., 60 Wis. 489, 19 N. W. Rep. 521. The object of the section was to abolish, not only the form, but also the substance, of the old bill of discovery, and to enable the party to obtain the benefits of the bill, and also a more...