Hurricane Tel. Co v. Mohler

• Decision Date: 08 March 1902
• Court: West Virginia Supreme Court
• Parties: HURRICANE TEL. CO. v. MOHLER et al

41 S.E. 421

51 W.Va. 1

HURRICANE TEL. CO.

v.MOHLER et al

Supreme Court of Appeals of West Virginia.

March 8, 1902.

BILL OF DISCOVERY—REMEDY AT LAW—ORDER TO ANSWER—APPEAL—AMOUNT INVOLVED—ACTION AGAINST PARTNERSHIP— ISSUE AS TO PARTNERSHIP—DISCOVERY IN AID THEREOF—PROPRIETY.

1. A bill of discovery may be filed by a party to an action at law to compel discovery in aid of the action or of the defense thereto, although by sections 22 and 23 of chapter 130 of the Code the party filing such bill may compel the other party to attend and be examined as a witness for him in relation to the same matters.¹

2. An appeal lies from an order requiring an answer to such a bill when the amount involved in the action is of greater value or amount than $100, exclusive of costs, although it is not an order for the payment of money, nor one directly involving freedom.

3. Although, as a general rule, a bill of discovery does not lie for the purpose of determining whom the plaintiff therein may sue at law, if the bill alleges that the defendants have been sued at law as late partners, and sets out enough to show that a good cause of action has been alleged against the defendants as such copartners, and the defendants have filed a plea in abatement denying that the firm or company whose name is signed to the agreement sued on was at the time said contract was made, or at any time, a partnership composed of the said defendants, they may be required to discover whether they were such partners, to aid the plaintiff in maintaining his side of the issue thereby tendered.

(Syllabus by the Court.)

Appeal from circuit court, Kanawha county; F. A. Guthrie, Judge.

Bill of discovery by the Hurricane Telephone Company against J. Chas. Mohler and others. From an order requiring the defendants to answer, they appeal. Affirmed.

Flournoy, Price & Smith and R. S. Spilman, for appellants.

Payne & Payne and A. S. Alexander, for appellee.

POFFENBARGER, J. The Hurricane Telephone Company, a corporation, filed in the circuit court of Kanawha county what purports to be a pure bill of discovery against J. Chas. Mohler, M. F. Mohler, William E. Mohler, and Mohler Lumber Company. It alleges that the plaintiff has instituted an action at law in the same court against the same defendants, as late partners, under the firm name and style of the Kanawha Valley Telephone Company, for the recovery of $2,-

000 as damages for the breach of a certain contract made between the plaintiff and the Kanawha Valley Telephone Company, andfully described in the declaration filed in the action at law; that in said action said defendants filed two pleas and an affidavit in which they allege that the Kanawha Valley Telephone Company, whose name is signed to the agreement set forth in the declaration, was not at the time the agreement was made, and never was, a partnership composed of the said defendants; and that in a certain other suit pending on the law side of the same court, in which the Kanawha Telephone Company is plaintiff and the Kanawha Valley Telephone Company is defendant, and sued as a corporation, the said defendants filed a plea, verified by the oath of W. E. Mohler, denying that it is a corporation. The bill sets forth the nature of the plaintiff's cause of action in the law case substantially as follows: It owned and operated a telephone line extending from Win-field, in Putnam county, to Hamlin, in Lincoln county. The Kanawha Valley Telephone Company owned and operated a line extending from Winfield to Charleston, and the Kanawha Telephone Company owned and operated certain lines in and about the city of Charleston. On the 3d day of December, 1897, these three companies entered into a contract by which it was provided that the plaintiff's line and the line of the Kanawha Valley Telephone Company should be operated in connection with the Kanawha Telephone Company, the profits of the business transacted to be equally divided between plaintiff and the Kanawha Valley Telephone Company, and that plaintiff's line should be thus connected with the Kanawha Telephone Company, and enjoy the privileges before that time granted to the Kanawha Valley Telephone Company by a certain contract between the Kanawha Telephone Company and the Kanawha Valley Telephone Company. By said agreement said line from Winfield to Charleston was leased to the plaintiff for a valuable consideration, set forth in the contract, but not mentioned in the bill. A further stipulation was that the provisions of the contract should be binding upon each of the parties for a period of 10 years after the date thereof, and the parties bound themselves not to enter into any agreement with the Bell Telephone Company, or any other company or person, which would be detrimental to any one of the parties to said agreement Under this contract a profitable business was done until some time in September, 1898, when the Kanawha Valley Telephone Company, without fault upon the part of the plaintiff, sold out its line between Charleston and Winfield, and stopped the operation of plaintiff's line over the Kanawha Valley Telephone Company line, and with the Kanawha Telephone Company exchange at Charleston. It is alleged that the breaking of the said contract was injurious to the plaintiff, and therefore it brought said action at law. Other averments of the bill are that, before said action at law was brought, the plaintiff therein endeavored to obtain from the defendant W. E. Mohler the names of the persons composing the firm of the Kanawha Valley Telephone Company, but he declined to give them, although he knew who composed it; that the name of said firm was signed to the contract by J. Chas. Mohler, treasurer and secretary; that plaintiff is informed and believes that W. E. Mohler was active in the management of the affairs of said company; that the Mohler Lumber Company and M. F. Mohler are also interested, and know about its affairs; that J. Chas. Mohler is the secretary and treasurer of the Mohler Lumber Company; that W. E. Mohler and M. F. Mohler are directors of the Mohler Lumber Company; that there was a corporation of the exact name adopted by the said parties, who built and operated the Kanawha Valley Telephone Company's line; and that in order that the plaintiff may properly maintain its side of the issue in said action, or that it may sue the said Kanawha Valley Telephone Company properly, it should have the discovery prayed for in the bill in reference to certain matters therein set forth. The prayer of the bill is that the defendants be required to answer the following interrogatories: "First. Whether the Kanawha Valley Telephone Company was on the 3d day of December. 1897, a corporation or a partnership. Second. If a partnership, who composed said copartnership? Third. When, to whom, and for what consideration did said Kanawha Valley Telephone Company sell its line, extending from Charleston to Winfield? Fourth. What reasons it had for complaint, if any, against this plaintiff? Fifth. Why the said parties who constructed and operated the line from Charleston to Winfield adopted the name of a corporation which had been previously chartered by the state of West Virginia?" The defendants J. Chas. Mohler, M. F. Mohler, and W. E. Mohler filed a demurrer to the bill, setting forth the following causes of demurrer: "First. That the plaintiff has not made or stated such a case as entitled it in a court of equity, to the relief prayed for in said bill, or any part thereof. Second. This court, as a court of equity, has no power or jurisdiction to entertain plaintiff's bill, the object of which is to compel the defendants to furnish it the names of parties, so that it may bring suit against them upon its alleged claim. Such is not the province of a bill of discovery. Third. That said bill is not sufficient in law nor in equity." On the 10th day of April, 1901, the court overruled the demurrer, and awarded a rule against the defendants, requiring them to answer the bill not later than April 25, 1901, on pain of fine and imprisonment, "stating: First, who composed the Kanawha Valley Telephone Company, whose name is signed to the contract set out in the bill dated on the 3d day of December, 1897; second, whether said concern was on the day last mentioned a firm or copartnership; third, when the telephone line of said concern, extending on the said date from the city of Charleston, West Virginia, to Winfield, Putnam County, West Virginia, was sold, and to whom." Prom this order an appeal was obtained, upon which it is now to be determined whether said order was proper.

At the hearing it was suggested, without argument or discussion, that this order is not appealable, and the question is one of some difficulty. An appeal from such an order is not expressly given by any provisions of section 1 of chapter 135 of the Code, nor section 3 of article 8 of the constitution. It is not a decree for money, nor is it an order or judgment directly and immediately involving freedom, although refusal to obey the order might ultimately result in the imprisonment of the appellants. If this court can, by way of prevention, interpose in anticipation of that result, such proceeding would be very unusual, and no precedent for it is known to exist. The constitution and the first clause of said statute provide for appellate jurisdiction In civil cases, where the matter in controversy, exclusive of costs, Is of greater value or amount than $100, wherein there is a final judgment, decree, or order. This bill asks no pecuniary relief. It only seeks a discovery of facts, but that discovery is in aid of an action at law wherein the amount in controversy is $2,000. This is a separate and distinct suit, It is true, but it is ancillary to the action at law; and, if the discovery Is material to the action at law, as It must be in order to be had, then It may involve the whole matter in controversy in said action. The question has never been passed upon...