Hudson v. Graff

• Decision Date: 01 July 1948
• Citation: 33 N.W.2d 174,253 Wis. 1
• Parties: HUDSON v. GRAFF.
• Court: Wisconsin Supreme Court

253 Wis. 1

33 N.W.2d 174

HUDSON

v.GRAFF.

Supreme Court of Wisconsin.

July 1, 1948.

Appeal from an order of the Circuit Court for Grant County; R. S. Cowie, Circuit Judge.

Action by William G. Hudson against W. J. Graff for dissolution of partnership of joint enterprise, for an accounting by defendant, and for division of profits between the parties according to their respective rights, wherein defendant filed counterclaims demanding judgment for damages because of plaintiff's acts and conduct in course of their transactions. From an order granting leave to plaintiff to inspect certain books, documents, etc., which court ordered defendant to produce for plaintiff's inspection, the defendant appeals-[By Editorial Staff.]

Order affirmed.

Appeal by the defendant, W. J. Graff, from a circuit court order made under sec. 269.57, Stats., granting leave to plaintiff, William G. Hudson, to inspect certain books and documents, etc., which the court ordered Graff to produce for Hudson's inspection. Lorin L. Kay, of Richland Center, for appellant.

Hill, Beckwith & Harrington, of Madison, for respondent.

FRITZ, Justice.

The appellant Graff contends the circuit court erred in making the order in question requiring Graff to produce, under sec. 269.57, Stats., certain books, etc., for the inspection and examination by the plaintiff and respondent Hudson, and that as said order for the inspection, etc., grants a provisional remedy, it is appealable under the provisions in sec. 274.33(3), Stats., which authorizes an appeal from an order when it ‘grants, refuses, continues, or modifies a provisional remedy.’ The latter contention must be sustained. As this court said in Northern Wis. Co-op. Tobacco Pool v. Oleson, 191 Wis. 586, 211 N.W. 923, 925, ‘section 4183 (now sec. 269.57) * * * provides a provisional remedy, and such an order is appealable under section 274.33 paragraph 3.’ That has been considered the established rule since Noonan v. Orton, 28 Wis. 386;Ellinger v. Equitable Life Assur. Soc., 125 Wis. 643, 648, 104 N.W. 811.

The court's order from which the defendant Graff appealed required him to produce, in so far as it is within his power to do so, at the offices of his attorney for inspection and examination by plaintiff and his attorneys and accountants, certain records, etc., listed in detail in an Exhibit A, which was attached and made a part of the order. To determine the propriety of plaintiff's resorting to the discovery procedure provided by sec. 269.57, Stats., and the relevancy of the records, etc., ordered to be produced, there should be taken into consideration the pleadings and motion papers to determine the relationship between the parties, the issues in the action and the nature of records, etc., sought to be examined. Cespuglio v. Cespuglio, 238 Wis. 603, 300 N.W. 780. At the time of the hearing of the motion pursuant to which the court made the order under review requiring defendant to produce said records, etc., there were on file and submitted to the court plaintiff's complaint, defendant's answer and counterclaims, and plaintiff's replies thereto; an affidavit made by the plaintiff and another made by his accountant, Karl F. McMurry, to which there was an attached Exhibit A listing and briefly describing the records, etc., sought to be examined; and also an affidavit by the defendant. Briefly stated so far as necessary here, it appears from the matters stated in said pleadings and motion papers that, commencing in April 1934, Hudson and Graff were engaged, as members of a partnership or a joint enterprise, in numerous transactions in conducting an automobile financing and sales finance business.In the course thereof they, on March 10, 1936, entered into a written contract as to which it suffices to note,-in so far as is presently material herein,-that it was provided therein that Hudson does thereby assign to Graff all his right, title and interest in and to all of the notes, conditional sales, agreements, contracts, chattel mortgages and other documents evidencing the loans and the assets of said automobile financing operation and being in the aggregate amount of $35,689.08; that moneys are received in the liquidation of any of said assets, and will be the property of Graff until his account amounting to $29,578.91 on March 10, 1936, shall have been liquidated; that all moneys thereafter received up to $6,110.17 shall be the property of Hudson, and any moneys in excess of said amounts are to be the equal property of the parties; that the business conducted by them up to and including March 10, 1936, shall be liquidated as stated above; and commencing on March 11, 1936, they shall conduct a financing business along certain specified lines, and out of any moneys received from the...