In Re Conde

• Citation: 137 N.J.L. 589,61 A.2d 198
• Decision Date: 13 September 1948
• Docket Number: No. 17234.,17234.
• Parties: In re CONDE et al.
• Court: United States State Supreme Court (New Jersey)

137 N.J.L. 589

61 A.2d 198

In re CONDE et al.

No. 17234.

Supreme Court of New Jersey.

Sept. 13, 1948.

Proceeding in the matter of the application of the Universal Moulded Products Corporation, a Delaware corporation, for issuance of subpoenaes directed to G. E. Conde and C. J. Welz. On petition of E. I. DuPont de Nemours & Company, Inc., for vacation of order allowing writ of subpoena.

Order in accordance with opinion.

Hicks, Kuhlthau, Thompson & Molineux, of New Brunswick (Douglas M. Hicks, of New Brunswick, of counsel), for petitioner E. I. DuPont de Nemours & Co., Inc.

R. E. & A. D. Watson, of New Brunswick (A. Dudley Watson, of New Brunswick, of counsel), for respondent Universal Moulded Products Corporation.

BURLING, Justice.

This is an application made by E. I. DuPont de Nemours & Company, Incorporated, to set aside a certain order of this Court dated July 7, 1948, which ex parte order was made by Mr. Justice Bodine directing the issuance of subpoenas to G. E. Conde and C. J. Welz. The summer schedule of this Court for reception of motions was in effect and a petition was presented to and a rule to show cause why this order should not be set aside was allowed by Mr. Justice Donges and made returnable and argued before me on August 19, 1948. The pertinent facts as they appear from affidavits and counter-affidavits are as follows:

The Universal Moulded Products Corporation, a Delaware corporation, commenced a civil action in the Corporation Court for the City of Bristol, Virginia, against E. I. DuPont de Nemours and Company. The defendant filed a plea of general issue. Under Virginia procedure, the action was at issue as the defendant had pleaded the general issue. Big Sandy & Cumberland R. Co. v. Ball, 133 Va. 431, 113 S.E. 722; O. L. Standard Dry Goods Co. v. Hale & Pressley, 148 Va. 640, 139 S.E. 300. The plaintiff in that action filed a petition under the New Jersey statute, R.S. 2:100-36, N.J.S.A., to obtain the process of subpoena directed to Conde and Welz, two employees of defendant who are residents of this State. The petition alleged the pendency of the action in the Virginia Court; service of notice on defendant on June 30, 1948, of the intention to take the depositions of G. E. Conde and C. J. Welz (residents of the State of New Jersey) before William D. Danberry, a counsellor-at-law of the State of New Jersey, at his office, Citizens Building, 46 Bayard Street, New Brunswick, New Jersey, on July 16, 1948, and that the testimony of the said employees was material and prayed for the issuance of subpoenas to be used in said action.

The subpoenas are addressed to G. E. Conde and C. J. Welz. At common law a legal name consisted of a given and of a surname or family name. Actions are properly so commenced and prosecuted. Schaffer, Trustee, v. Levenson Wrecking Co., Sup. 1911, 82 N.J.L. 61, 81 A. 434. There seems to be no question of the identity of the persons whose testimony is desired to be taken and no point is made of this fact.

The statute under which the order was made reads as follows:

R.S. 2:100-36, N.J.S.A. ‘Whenever notice is given or other proceedings are taken for the purpose of examining or taking the deposition of any witness or witnesses within this state, pursuant to the laws of the United States or the laws of any state of the United States, other than this state, or of any foreign country, to be used in any civil action or proceeding pending in any court of the United States, or in any court of any state of the United States, other than this state, or of any foreign country, any justice of the supreme court of this state may, upon application make to him, with proof by affidavit that the testimony of such witness or witnesses is material to the applicant, make an order awarding process of subpoena out of the supreme court of this state, for such witness or witnesses to appear and testify in pursuance of such notice or other proceeding, and before such commissioner or person as shall be named in such order. Source: L.1900 c. 150, s 60, p. 380 (C.S. p. 2238, s 60) as am. by L.1914, c. 98, s 2, p. 154 (1924 Suppl. ss 70-60).’

Surprisingly enough, although this statute has been on the books since 1900 it has never been the subject of judicial interpretation. In the revision of 1937 it forms a part of Title 2, Article 7, Chapter 100, R.S. 2:100-35 to 2:100-37, N.J.S.A., relating to testimony of witnesses for use in a foreign jurisdiction. The first section, R.S. 2:100-35, N.J.S.A., relates to the practice of execution of a commission out of a court of another jurisdiction and has no significance in this application.

The statute is plain and its import is obvious. It is to facilitate the obtaining of testimony for use in other jurisdictions and is, in a sense, complementary of other sections of our statute,...