Ward v. Martin

• Decision Date: 03 April 1918
• Docket Number: 299.
• Parties: WARD v. MARTIN.
• Court: North Carolina Supreme Court

95 S.E. 621

175 N.C. 287

WARD v. MARTIN.

No. 299.

Supreme Court of North Carolina

April 3, 1918

Appeal from Superior Court, Robeson County; Bond, Judge.

Suit by John W. Ward against R. F. Martin. From an order for examination of defendant before trial and the denial of a motion to vacate the same, defendant appeals. Affirmed.

Walker and Allen, JJ., dissenting.

Since claim of privilege as to testimony tending to convict witness of crime must be made by party himself, it cannot be asserted by attorney of one against whom adverse party examination is sought in motion to revoke order for such examination.

The plaintiff, having filed his verified complaint, moved in the cause for an order to examine defendant before the clerk prior to trial under Rev. §§ 865, 866. The clerk made the order and the defendant moved to vacate the same. The motion was denied, and defendant appealed to the superior court. His honor Judge Bond affirmed the order of the clerk, and defendant appealed.

H. E Stacy, T. A. McNeill, Jr., and Johnson & Johnson, all of Lumberton, W. E. Lynch, of Rowland, and Manning & Kitchin, of Raleigh, for appellant.

McLean Varser & McLean and McIntyre, Lawrence & Proctor, all of Lumberton, for appellee.

BROWN J.

The grounds upon which the motion to vacate the order is based are: (1) That the order would allow plaintiff to examine defendant as to his private affairs immaterial to the matters in controversy; (2) that the complaint and affidavit indicate the purpose of plaintiff to secure from defendant evidence of an incriminating character tending to convict him of a crime in violation of his constitutional rights.

We recognize the general principle that, where no statutory immunity is given, a party to an action cannot be compelled to testify to matters that manifestly tend to convict him of a crime, whether the examination take place at or before the trial. Where no complaint had been filed, and the purpose of the examination is to aid in preparing the complaint, the mover must show by affidavit such facts as will entitle him to the order. In this case the complaint has been filed and sets out a cause of action against defendant. The plaintiff then has a right under the statute to examine the defendant. No leave of court is necessary, as was the case under the old bill of discovery. That requirement is omitted from our statute. Vann v. Lawrence. 111 N.C. 34, 15 S.E 1031. The cause of action set out in the complaint is based upon an alleged misappropriation of money by defendant while acting as bookkeeper and accountant for plaintiff.

It is contended that the order for examination should be denied because any answers that defendant should make to questions asked him would necessarily tend to convict defendant of a crime. While all courts hold that a party cannot be forced to answer questions which tend to criminate him or subject him to a statutory penalty, yet they are divided somewhat as to when he may assert his privilege when the attempt to examine him is made before trial. Some courts hold that the party cannot resist an order for his examination upon such ground but that he must avail himself of his privilege at the time the objectionable questions are propounded to him, while others declare that, if the only material evidence sought is necessarily incriminating, the examination will not be allowed; otherwise the party will be left to assert his privilege at the examination. The author of Encyclopedia of Pleading & Practice arrays all the cases pro and con, and says the latter seems to be...