Tomlinson v. Tomlinson, 174

• Decision Date: 27 November 1953
• Docket Number: No. 174,174
• Citation: 61 N.W.2d 102,338 Mich. 274
• Parties: TOMLINSON v. TOMLINSON.
• Court: Michigan Supreme Court

Page 102

61 N.W.2d 102

338 Mich. 274

TOMLINSON v. TOMLINSON.

No. 174.

Supreme Court of Michigan.

Nov. 27, 1953.

Wilcox, Lacy, Lawson, Kirkby & Hunt, Detroit, for plaintiff and appellee, Mary Tomlinson, Eugene D. Kirkby, Detroit, of counsel.

Freud, Markus, Gilbert & Lubbers, Detroit, for defendant and appellant.

Before the Entire Bench.

BUSHNELL, Justice.

Defendant Willard Tomlinson was granted leave to appeal from a circuit court order, directing a pretrial discovery in a suit for divorce.

The Circuit judge limited discovery to questions concerning the property and income of Tomlinson, his assets, liabilities and financial standing. Provision was made in the order for either party to apply to the trial court 'for rulings in the event of dispute over the admissibility of any testimony or other disputed matters.'

Although pretrial practice has been in existence in Wayne county for some years, the precise question now presented is one of first impression. It arose out of the addition of Court Rule No. 35, section 6 (1945). This new pretrial discovery rule, sec. 6, was adopted and became effective June 27, 1952.

The crux of the question before us is whether the matters concerning which the trial judge permitted pretrial discovery are 'relevant to the subject matter involved in the pending action,' i. e., the suit for divorce.

Before determining that question we must first resolve another raised by the appellant. Is Section 6 of Rule No. 35 unconstitutional under article 2, section 1, and article 7, section 5 of the Michigan Constitution of 1908, and section 1 of the Fourteenth amendment to the Constitution of the United States?

It cannot be disputed that this Court has inherent as well as constitutional rulemaking power in the discharge of its general superintending control over all inferior courts. Const.1908, art. 7, secs. 4 and 5. This is further emphasized by the statute, C.L.1948, sec. 601.14, Stat.Ann. sec. 27.34, which seeks the 'attainment, so far as may be practicable,' of certain 'improvements in the practice' among which are the 'expediting of the decisions of causes' and the 'remedying of such abuses and imperfections as may be found to exist in the practice'.

To that end the bench and bar of the State collaborated in the promulgation by this Court of the permissive rule for pretrial procedure, and later by the implementing of that practice by pretrial discovery. (See in this connection Court Rule No. 40 for the Production of Books and Papers; Rule No. 41 for Discovery by Deposition and Examination as to Injuries; Rule No. 42 regarding Admissions from Adverse Party; and Hallett v. Michigan Consolidated Gas Co., 298 Mich. 582, 299 N.W. 723.

For textual comments on comparable Federal rules and the existing pretrial practice in the 3rd Judicial Circuit (Wayne) see:

Honigman, Michigan Court Rules Annotated.

Hon. Arthur T. Vanderbilt (Chief Justice of the Supreme Court of New Jersey) Cases and other Materials on Modern Procedure and Judicial Administration (1952) pp. 563-674;

George Ragland, Jr., Discovery Before Trial (1932);

Harry D. Nimes, Pre-Trial (1950);

Hon. Charles E. Clark, The Practical Operation of Federal Discovery, 'A Symposium on the Use of Depositions and Discovery Under the Federal Rules,' 12 F.R.D. 131-170;

Hon. Irving R. Kaufman, Some Observations on Pre-Trial Examinations in Federal and State Courts, 12 F.R.D. 363-372;

Hon. Alfred P. Murrah, Pre-Trial Procedure, A Statement of its Essentials, 14 F.R.D. 417-446 contains a bibliography on pre-trial material.

Appellant in the instant case narrows the constitutional question by his argument that the power under article 7, section 5 of the Michigan Constitution is limited to the promulgation of 'general rules,' and that pretrial discovery is without the pale because its use is limited by the rule in question to those judicial circuits 'having a pretrial calendar'.

We do not discuss the broader question other than to refer to our holdings in Behr v. Baker, 257 Mich. 487, 241 N.W. 229; Pear v. Graham, 258 Mich. 161, 241 N.W. 865; Konstantine v. City of Dearborn, 280 Mich. 310, 273 N.W. 580; and Jones v. Eastern Michigan Motorbuses, 287 Mich. 619, 283 N.W. 710. See authorities annotated in 100 A.L.R. 22.

On the narrower phase of the question we merely observe that the guaranty of equal protection of the law is not one of equality of operation or application to all citizens of the state or nation, but rather one of equality of operation or applicability within the particular class affected, which classification must, of course, be reasonable. Tribbett v. Village of Marcellus, 294 Mich. 607, 293 N.W. 872. So tested, the rule in question does not transgress constitutional limitations.

The phrase 'relevant to the subject matter involved' appears in paragraph (b) of section 6 of the rule, which we quote with the preceding one:

'(a) In any civil action the court or the judge or judges of any judicial circuit having a pretrial calendar may at any time permit any party by order of the court to compel the production, examination or inspection of any books, documents or other tangible things and to take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. The time, place and scope of the examination shall be fixed in the order authorizing the taking of the deposition. The attendance of witnesses may be compelled by the use of subpoena and the deposition of a person confined in prison may be taken only by leave of the court on such terms as the court prescribes.

'(b) The order of the court for pretrial depositions and discovery, unless for good cause otherwise shown, shall permit the examination of the deponent regarding any matter, not privileged and admissible under the rules of evidence governing trials, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and locations of persons having knowledge of relevant facts. The court may require parties to claim or waive physician-patient and hospitalpatient privilege in fixing the scope of the examination and a claim of privilege at the pretrial hearing excludes such testimony if offered later in the trial.'

This rule is not mandatory but permissive, with discretion reposed in the court as to its applicability. Its purpose is to facilitate and expedite the trial of causes in those circuits which have deemed it necessary to adopt pretrial dockets in order to alleviate their load and as an aid in obtaining a better judicial administration. Its application is limited to questions that are relevant to the subject matter involved.

Appellant contends that the proposed inquiry into his financial status and ability is both irrelevant and untimely. He insists...