George v. Bode

• Decision Date: 13 January 1920
• Citation: 175 N.W. 939,170 Wis. 411
• Parties: GEORGE ET AL. v. BODE ET AL.
• Court: Wisconsin Supreme Court

170 Wis. 411

175 N.W. 939

GEORGE ET AL.

v.BODE ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Waukesha County; Martin Lueck, Judge.

Action by A. H. George and others against Friedreicke Bode and others. From a denial of a motion for an adverse party examination, defendants appeal. Affirmed.

Owen, J., dissenting.

Appeal from an order. The plaintiffs and respondents are residents of Mississippi, the defendants and appellants of Wisconsin. After the service of the complaint the appellants filed an affidavit for the purpose of procuring an adverse examination of the respondents under section 4096, Stats. Wis., in order to enable them to plead to the complaint, and moved that the circuit judge fix a time and place within this state for such examination and require the plaintiffs to attend at such time and place and submit to such examination. The circuit judge held that while the defendants were entitled to examine the plaintiffs under section 4096, the court had no power under the statute to order them to appear in Wisconsin and submit to such examination and for that reason alone denied the motion. The defendants appealed.Adolph Kanneberg, of Milwaukee, for appellants von Cotzhausen and Progress Blue Ribbon Farm.

D. S. Tullar, of Waukesha, for appellant Bode.

Bloodgood, Kemper & Bloodgood, of Milwaukee (Emmet Horan, Jr., of Milwaukee, of counsel), for respondents.

WINSLOW, C. J.

Conceding for the purposes of the case that a nonresident may legally be required by statute to appear within this state and submit to an examination under section 4096 as a condition of maintaining his action, the question presented is whether at the time the order in question was made, namely, March 31, 1919, the statute so provided.

At that time section 4096 contained two provisions bearing on the subject. Subdivision 3 of that section provided that--

“The attendance of the party to be examined * * * may be compelled upon subpœna and the payment or tender of his fees as a witness. If the party * * * is a nonresident of this state, the court may upon motion fix the time and place of such examination. He shall attend at such time and place and submit to the examination.”

Subdvision 6 provides that--

“Such examination shall not be compelled in any other county than that in which the party to be examined resides, except as hereinbefore provided: Provided, however, that whenever plaintiff or defendant is a nonresident of this state his deposition may be had under the provisions of this section in any county in the state, if he can be personally served with notice and subpœna.”

The italicized clauses were added to the section by chapter 84 of the Session Laws of 1909, and the argument is that they show that the Legislature intended thereby to empower the court to fix the time and place of a nonresident's examination within the state. Otherwise, it is said, the clause in subdivision 6, “except as hereinbefore provided,” has nothing to refer to. The argument is not without its weight, but, on the other hand, the special provision still appears to the effect that the deposition of a nonresident may be taken in any county of the state if he can be personally served with notice and subpœna.

This seems to us very persuasive. It is almost, if not quite, the “expressio unius” which excludes anything else. The examination may be taken in this state if he can be personally served with notice and subpœna, the inevitable inference is that it is only if he can be so served that he can be so examined. If the provisions of subdivision 3 meant that the court might fix a time and place for his examination within this...