West Branch Pants Company v. Gordon
| Decision Date | 17 November 1924 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Lowe, J.
Defendant appeals from an order denying his motion to set aside an order issued under § 7841, Comp. Laws, 1913.
Appeal dismissed.
Palda & Aaker, for appellant.
Under these statutes, the examination is generally taken after issue has been joined, though there are statutes which provide that it may be had before; but, in such cases, it is usual for the court to limit, by an order the subjects to which the examination shall extend, . . . The party is not called upon by the sections to surrender his own documents to be indefinitely impounded in court. Jones, Blue Book of Ev § 703.
The discovery sought must be material to enable the plaintiff in a bill to support or defend a suit. Jones, Blue Book of Ev 704.
No doubt a witness may before he is required to answer have the determination of a court as to whether or not the matters as to which it is proposed to examine him are material and relevant to the controversy. This is particularly true where he is required to exhibit books and papers relating to many matters other than those appertaining to the facts in dispute. This may be done either at the time an application is made for a writ to compel the attendance of the witness or the same questions may be properly raised as in this case by a motion to suppress the subpoena. Gullun v. Hibernia Bank & Trust Co. (Wis.) 195 N.W. 703.
In the case of Princess of Wales v. Lord Liverpool, 1 Swanst. 114, 580, Lord Eldon at first refused an application for an order to the opposite party to produce the documents, but finally ordered their production, but "he required the defendant to state in what respect the inspection of the notes was material for his defense." Wigmore, Select Cases on Ev. p. 743.
An answer, by way of general denial, is the equivalent of and substitute for the general issue under the common law system of pleading. It gives the defendant the same right to require the plaintiff to establish by proof all the material facts necessary to show his right to a recovery as was given by that plea. Under the common law system, the general issue could not be stricken out as sham, although shown by affidavit to be false. Kline v. Harris, 30 N.D. 421, 152 N.W. 687; Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555.
McGee and Goss, for respondent.
Where it appears that a party to an action has knowledge of facts which are material in determination of that issue, either party to the action under this provision of the code is entitled to examine such party and have his deposition for use at the trial. Mithertz v. Goldschmidt Bros. 118 N.Y.S. 610.
Each party is to be confined to those matters which are material to sustain the case which he sets up by his pleadings; he is to be allowed to obtain by interrogating his adversary, proof of his own case. Jones, Ev. § 703.
The plaintiff can call the defendant for cross-examination to make proof of necessary and material facts in establishing their case, and does not permit of "fishing excursions." Wigmore, Select Cases of Ev. p. 743.
Plaintiff brought this action to recover the sum of $ 228.00 and interest, which he claims is due him from the defendant for certain goods, wares and merchandise. The defendant interposed a general denial. After issue was joined plaintiff applied to the court (under § 7864, Comp. Laws, 1913) for an order for the examination of defendant before trial. The court granted plaintiff's application, and issued an order requiring defendant to appear and testify before the judge of the district court at a time and place fixed in the order. On the return day the defendant appeared and moved that the order for examination be vacated and set aside. The motion was denied and defendant has appealed.
Plaintiff moves that the appeal be dismissed on the ground that the order sought to be reviewed is not appealable.
Under our statute (Comp. Laws, 1913, § 7841) an appeal may be taken to this court from the following orders only:
"1. An order affecting a substantial right made in any action when such order in effect determines the action and...
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