Guthrie v. Speck, 7848.

• Decision Date: 14 July 1932
• Docket Number: No. 7848.,7848.
• Citation: 53 S.W.2d 318
• Parties: GUTHRIE v. SPECK.
• Court: Texas Court of Appeals

53 S.W.2d 318

GUTHRIE v. SPECK.

No. 7848.

Court of Civil Appeals of Texas. Austin.

July 14, 1932.

Rehearing Denied October 5, 1932.

Appeal from District Court, Schleicher County; Jno. F. Sutton, Judge.

Suit by Fred Speck against George Guthrie. From an interlocutory order granting a temporary injunction, defendant appeals.

Affirmed.

Wheeler & Fraser and Dan Moody, all of Austin, and Fellbaum & Fellbaum, of San Antonio, for appellant.

McCLENDON, J.

Appeal from an interlocutory order granting a temporary injunction in an action to enjoin a proceeding to take a deposition to perpetuate testimony under R. S. art. 3742. The record contains a motion to dissolve; but as no action was had thereon and the appeal is from the interlocutory order, this motion cannot be considered. Young v. Dudney (Tex. Civ. App.) 140 S. W. 802 (error denied).

The application to take the deposition was not verified. Its recitative portions read: "Now comes George Guthrie, a resident of Bexar County, Texas, and represents that he anticipates the institution of a suit in which he may be interested and desires to perpetuate the testimony of T. J. Jacoby, a witness who resides in the County of Schleicher, State of Texas, to be used in such suit; that such suit could be instituted in the above named court; that Fred Speck of Menard County, Texas, is, and is supposed by him to be interested adversely to him."

The statutory provisions regarding process and notice were observed, from which it appears that the deposition was to be oral, and not on written interrogatories.

Speck and Jacoby brought this suit to enjoin the proceeding; the material averments of their petition, which was verified, reading:

"Your petitioner avers that Fred Speck has two suits in the district court of Bexar County, Texas, wherein George Guthrie is a party, and that Fred Speck does not live in Schleicher county, and never made any obligation to pay anything in Schleicher County, and the only transactions that could possibly be pending between the said George Guthrie and Fred Speck are now pending in the said two suits in the district court of Bexar County, Texas.

"That the said George Guthrie and companies that he represents, have sued T. J. Jacoby in the district court of Bexar County, Texas, and your petitioner believes that said attempt to take the deposition of T. J. Jacoby is but a fishing scheme to find out what the said Jacoby knows concerning either his own, or said Fred Speck suits pending in the Bexar County courts."

Temporary injunction was granted upon this petition, enjoining the proceeding pending hearing on its merits.

The substance of appellant's contention is: Since the petition for injunction showed on its face that appellant was attempting to avail himself of a right expressly given by statute, the injunction should not have been granted, in the absence of positive averments founded on appellee's own knowledge that the proceedings were illegal and not in accordance with law. It was further contended that no irreparable injury was alleged, and there was therefore no ground for injunctive relief.

The case has not been briefed for appellee.

We have reached the following conclusions which require affirmance of the trial court's order:

1. The statute contemplates that the application to perpetuate testimony show upon its face the general nature of the anticipated suit and the general character of the testimony sought to be perpetuated.

2. The petition for injunction negatived any right on appellant's part to perpetuate Jacoby's testimony, and was sufficient to put in issue the bona fides of the proceeding, and to require Guthrie to make a showing of his rights in the premises.

3. The temporary injunction was the only possible means of preserving the status quo pendente lite; and therefore the injunctive relief granted was proper.

The pertinent portions of article 3742 read: "When any person may anticipate the institution of a suit in which he may be interested, and may desire to perpetuate the testimony of a witness to be used in such suit, he, his agent or attorney, may file a written statement in the proper court of the county where such suit could be instituted, representing the fact and the names and residences, if known, of the persons supposed to be interested adversely to said person."

This article was first enacted in 1848 as section 18 (page 111, Gen. Laws 2nd Leg.) of an act regulating district court proceedings. It was amended in 1874 (chapter 82, p. 103), and has been carried forward into the several codifications. The original act provided that the proceeding be filed "in the court of the county where such suit could be instituted." This language was changed in the 1874 act to read, "in the District Court, etc."; and in the 1925 codification to read, "in the proper court of the county where such suit could be instituted." In all other respects the wording of the original act has been continued in subsequent enactments and codifications, with this exception: In the 1925 codification, the application was required to represent "the fact," whereas in all previous enactments it was required to represent "the facts." We attach no significance to this change from plural to singular.

The purpose of this requirement was, we think, to inform the adverse party of the general nature of the anticipated suit in order that he might (1) inform himself as to the necessity or propriety of preserving the testimony; and (2) be in position intelligently to cross-examine the witnesses.

At the time this statute was originally enacted, analogous proceedings of early origin existed both in the civil law and in English jurisprudence. To quote from Sullivan v. Dimmitt, 34 Tex. 123: "The right to take the examination of witnesses before an officer authorized for that purpose, with the view of perpetuating their testimony, was fully recognized and established by the civil law many centuries ago (Domat, Civ. L., 2036); and is still recognized in the English chancery courts as a practice admissible, and indeed, under certain circumstances, absolutely necessary for the protection and maintenance of the rights of parties. This practice is adopted in nearly, if not quite, every State in the Union (Story's Eq. Juris., 1505), including the ...