Walker v. Pa. R. Co.

• Decision Date: 27 March 1944
• Docket Number: 149/660.
• Citation: 36 A.2d 597
• Parties: WALKER et al. v. PENNSYLVANIA R. CO.
• Court: New Jersey Court of Chancery

36 A.2d 597

WALKER et al.

v.PENNSYLVANIA R. CO.

149/660.

Court of Chancery of New Jersey.

March 27, 1944.

Bill for discovery by Walter Walker and others, complainants, against the Pennsylvania Railroad Company. On defendant's motion to strike the bill.

Motion denied.

1. Discovery proper is, in its essential conception, merely an instrument of procedure, unaccompanied by any direct relief, but in aid of relief sought by the party in some other judicial controversy.

2. Discovery proper, as a general doctrine, will be enforced unless some recognized and well-established objection exists in a particular case to prevent or limit its operation.

3. One of the exceptions to the general rule that a bill for discovery alone will not lie against a third party who is a stranger to the suit, is where the purpose of the discovery is to ascertain proper and necessary parties to a suit pending or intended to be instituted.

Wm. Elmer Brown, Jr., of Atlantic City, for complainants.

John A. Hartpence, of Jersey City, for defendant.

SOOY, Vice Chancellor.

Complainants' bill is for discovery only against the Pennsylvania Railroad Company, hereinafter referred to as P.R.R. Defendant moves to strike the bill.

The bill alleges that complainants, who are employees of the Pennsylvania-Reading Seashore Lines, hereinafter referred to as P.R.S.L. intend to file a bill against their employer alleging against it that it has failed and is failing to abide by the terms of certain agreements entered into between it and its employees, of whom complainants are some; that the failure of P.R.S.L. to abide by said agreements has resulted and will in the future result in irreparable damage and loss to said complainants and others, ‘in that the seniority or priority rights, position, standing and status of said complainants and others is constantly and frequently subject to and is changed and altered different from that’ which is provided for in said agreements; that ‘there complainants desire and intend to institute certain proceedings in this court by the filing of bill of complaint in their own behalf, and for the benefit of all other persons similarly situated, for the purpose of having their rights, as provided for in said agreements of November 10th and 20th, 1933, and the roster effective December 1st, 1933, prepared and posted pursuant thereto as aforesaid, determined and protected, and particularly that this court shall by its decree direct the discontinuance of the use of said ‘Adjustable Seniority Roster’ and declare it null and void; that all disturbance and violation of the rights of these complainants as evidenced by said roster effective on December 1st, 1933, as aforesaid, be enjoined,' etc.

It is further alleged that the rights of certain men employed on the Trenton Division of P.R.R. are affected by the agreements aforesaid and that they are therefore proper and necessary parties to the contemplated suit in this court; that complainants have no means of ascertaining the names and addresses of these employees of P.R.R. other than through a discovery from that company.

The prayer of the bill is:

‘That this court may order the defendant, Pennsylvania Railroad Company, to make discovery by and through its proper officers or agents, on oath, of the identity and names of all persons and parties in its employ and assigned to duties as firemen and enginemen on its Trenton Division, or on any division of its railroad lines, who by reason thereof may have any rights likely to be affected by a decree which may be hereinafter entered in the suit intended to be hereafter instituted in this court by these complainants for the purpose stated in the aforesaid bill of complaint, and to make further discovery, as aforesaid, of the addresses and places where each of its said employees may be served with process herein, in order that said parties and persons may be made parties defendant to said proposed proceeding in this court, and that they may be included among those who may have an interest in or be affected by any decree that may be entered in said proposed proceeding.’

It should be noted that complainants do not intend to make P.R.R. a party to the contemplated suit in equity and that no relief other than discovery is sought by the complainants against that company, so that the present suit is one invoking the auxiliary jurisdiction of this court for discovery ‘purely’ and not for discovery in connection with a prayer for relief. The sole purpose of the suit is to procure the names and addresses of proper and necessary parties to the contemplated suit in equity.

The reason urged in support of the motion to strike upon which the stress is laid is ‘that a bill for discovery alone will not lie against a third party who is a stranger to the suit,’ citing the following cases in support of this proposition: Miller v. Ford, 1 N.J.Eq. 358; Courter v. Crescent Sewing Machine Co., 60 N.J.Eq. 413, 45 A. 609, citing United New Jersey R. & C. Co. v. Hoppock, 28 N.J.Eq. 261; Bacharach v. Bartlett, 81 N.J.Eq. 248 and 253, 86 A. 966 and 87 A. 70; McCarter v. Farmers' Loan, etc., Co., 105 N.J.Eq. 322, 147 A. 785; Griffin v. Londrigan, 107 N.J.Eq. 76, 151 A. 611; Attorney-General v. Foster, etc., Corp., 133 N.J.Eq. 554, 33 A.2d 699; Greischel v. Greischel, 133 N.J.Eq. 31, 29 A.2d 901.

Before considering these authorities it should be kept in mind that there are two types of discovery, as pointed out by Pomeroy, Vol. 1, 5th Edition, section 191, first, that which is ‘an incident of every chancery pleading’ and ‘discovery proper’ and that author, in discussing the two kinds of discovery, points out in Note 7, page 276, that the decisions of our courts, while speaking of discovery, have not always been careful to distinguish between the discovery which is a constant incident to the obtaining of relief in every equity suit, and the discovery which is a branch of the auxiliary jurisdiction, obtained in a separate suit without any relief. See also 17 Amer.Jur., page 3, section 2.

Pomeroy, section 191, page 277, defines discovery proper as follows:

It is ‘in its essential conception, merely an instrument of procedure, unaccompanied by any direct relief, but in aid of relief sought by the party in some other judicial controversy. The suit for discovery, properly so called, is a bill filed for the sole purpose of compelling the defendant to answer its allegations and interrogatories, and thereby to disclose facts within his own knowledge,’ etc.

That author then proceeds with the history of the auxiliary jurisdiction of this court to compel discovery alone without other relief, see section 191, page 280, and points out in section 195 that as this auxiliary jurisdiction was contrived to supply a great defect in the ancient common-law methods and intending to promote justice, discovery was, from the outset, favored by courts of equity, and as a general doctrine ‘it will always be enforced, unless some recognized and well-established objection exists in the particular case to prevent or to limit its operation.’

It seems to be a general rule well established that ‘no person can properly be made a defendant in a suit for discovery, * * * unless he has an interest in the subject matter of the controversy in aid of which the discovery is asked.’ But this rule is subject to certain well-defined exceptions and our courts have frequently compelled discovery in order to obtain names and addresses of proper parties to a suit or proceedings intended to be started.

Cases dealing with the right to discovery in order to determine proper parties are: Brown v. Palmer, C.C., 157 F. 797; Kurtz v. Brown, 3 Cir., 152 F. 372, 81 C.C.A. 498, 11 Ann.Cas. 576, affirming American Alkali Co. v. Kurtz, C.C., 134 F. 663; Huey v. Brown, 3 Cir., 171 F. 641, 96 C.C.A. 443; Brown v. Magee, C.C., 146 F. 765 (receiver of corporation can bring bill for discovery against a stockbroker to discover who is the real owner of stock held in his name as agent); Brown v. McDonald, 3 Cir., 133 F. 897, 67 C.C.A. 59, 68 L.R.A. 462, reversing C.C., 130 F. 964; Middletown Bank v. Russ, 3 Conn. 135, 8 Am.Dec. 164; Coca-Cola Co. v. Atlanta, 152 Ga. 558, 110 S.E. 730, 23 A.L.R. 1339, certiorari denied in 259 U.S. 581, 42 S.Ct. 585, 66 L.Ed. 1074; Post v. Toledo, C. & St. L. R. Co., 144 Mass. 341, 11 N.E. 540, 59 Am.Rep. 86; Clark v. Rhode Island Locomotive Works, 24 R.I. 307, 53 A. 47.

In the bill before me complainants aver that they intend to file a bill to enforce and protect their alleged priority rights against P.R.S.L. The motion to strike, of course, admits this to be true, and this allegation is sufficient, inasmuch as it is not necessary to invoke this court's jurisdiction for pure discovery that the prior bill be actually filed. In 17 Amer. Jur., section 10, page 9, it is said:

‘A bill for discovery may be maintained not only in aid of a suit already brought, but to aid the plaintiff in a suit which he intends to bring immediately if the bill discloses a cause of action. Where such a bill is brought, it is generally for the purpose of discovering the names or identity of the persons against whom it is sought to institute an action, and the party defendant to the bill is not, therefore, the person against whom the legal liability is sought to be established and enforced.’

We have few cases of discovery proper reported in this State, but the doctrine is quite fully dealt with in Howell v. Ashmore, 9 N.J.Eq. 82, 57 Am.Dec. 371.

In Howell v. Ashmore, supra, 9 N.J.Eq. at page 85, the Court said:

‘The principles applicable to a bill for discovery only, are in some respects different from those which govern the court, where the bill prays for an injunction to stay proceedings at law, or in any way to interfere with such proceedings, until the bill is answered; or where, in addition to the discovery, relief is prayed for. In the case of a bill for mere discovery, if it appears reasonable that the...