Monroe v. Holder, 182 N.C. 79 (1921)

Sept. 28, 1921 · Supreme Court of North Carolina

182 N.C. 79

J. M. MONROE et al. v. W. N. HOLDER.

(Filed 28 September, 1921.)

Pleadings — Examination of Party — Statutes—Appeal and Error.

An appeal will not directly lie to tbe Supreme Court from an order of tbe Superior Court judge affirming tbe action of tbe clerk in ordering tbe examination of tbe defendant to elicit certain information, alleged to be not otherwise obtainable, and material to tbe filing of tbe complaint, C. S., 900, when it does not appear tbat tbe defendant will be prejudiced or injured by tbe examination.'

Appeal by plaintiff from Granmer, J., at July Term, 1921, of Lee.

Civil action pending in tbe Superior Court of Lee County.

Tbe plaintiffs, desiring to elicit certain information, wbicb tbey allege is not otherwise obtainable, and is necessary and material to enable them to file their complaint, submitted tbe requisite affidavit and moved before tbe clerk for an order to examine tbe defendant as provided by C. S., 900 et seq. This was allowed. Whereupon, tbe defendant entered a special appearance before tbe clerk and moved to vacate the order of examination on tbe ground tbat it bad been improvidently and improperly granted. From tbe clerk’s refusal to strike out tbe order, tbe defendant appealed to tbe judge of tbe Superior Court, who, upon a bearing affirmed tbe order and judgment of tbe clerk. Plaintiff appealed.

Williams & Williams for plaintiffs.

Hoye & Hoyle for defendant.

Stacy, J.

It appearing tbat tbe order of examination, as entered by tbe clerk and approved by tbe judge, is based upon an affidavit, apparently sufficient in form and substance, and there being no denial ■of tbe facts or contrary showing by tbe defendant, we must dismiss tbe appeal as premature. Pender v. Mallett, 122 N. C., 163; Holt v. Warehouse Co., 116 N. C., 480; Vann v. Lawrence, 111 N. C., 32.

It is true, in Ward v. Martin, 175 N. C., 287, tbe Court, in its discretion, entertained an appeal from an order of tbis kind, because of tbe important questions presented; but in tbe instant case it does not appear tbat tbe .defendant will be prejudiced or injured by tbe examination.

Of course, as said in Bailey v. Matthews, 156 N. C., 81, and repeated in Fields v. Coleman, 160 N. C., 11, “Tbe law will not permit a party to spread a drag-net for bis adversary in tbe suit in order to gather facts upon wbicb be may be-sued, nor will i't countenance any attempt, under tbe guise of a fair examination, to harass or oppress bis opponent.” But these are matters wbicb, in tbe first instance, must be committed to tbe wisdom and good judgment of those who grant tbe orders and supervise their execution. Until some right is denied or some wrong is done, tbe defendant should not be permitted to appeal, and thus delay tbe trial of tbe cause. Holt v. Warehouse Co., supra.

Appeal dismissed.