Buchholz v. H. K. Ferguson Co., 198 N.C. 699 (1930)

May 21, 1930 · Supreme Court of North Carolina

198 N.C. 699

G. W. BUCHHOLZ v. THE H. K. FERGUSON COMPANY et al.

(Filed 21 May, 1930.)

Bill of Discovery B a — Order for examination of adverse party affirmed under the facts of this case.

Where on defendant’s appeal from an order made upon plaintiffs motion for the examination of the former before a commissioner to procure evidence for drafting the complaint, it appears that the order was issued after careful consideration, and there is nothing to indicate an effort on the part of the plaintiff to set a dragnet for the defendant or to harass or annoy him, the order will be affirmed on appeal.

Appeal by defendants, Tbe H. K. Ferguson Company and American Enka Corporation, from Johnson, Special Judge, at November Special Term, 1929, of BüNcombe.

Civil action pending in tbe Superior Court of Buncombe County.

Tbe H. K. Ferguson Company, as contractor, and tbe plaintiff, as subcontractor for tbe brick and masonry work, erected a factory for tbe American Enka Corporation at Enka, N. C. Plaintiff contends that be is entitled to collect from defendants a large sum for labor and work performed and materials furnished and used in tbe construction of said factory building. Under tbe terms of tbe contract between tbe plaintiff and tbe principal contractor, an alleged arbitration was bad, resulting in an award for tbe plaintiff. Tbe validity of tbis award is denied by Tbe H. K. Ferguson Company and tbe American Enka Corporation. For tbe purpose, therefore, of determining whether tbe plaintiff should base bis action upon tbe purported arbitration award, or upon tbe original contract, be filed a duly verified petition and motion in tbe cause and obtained an order directing certain officers and agents of tbe appealing defendants to appear before a commissioner for examination by tbe plaintiff to enable him to procure information for tbe drafting of bis complaint. From tbis order tbe said defendants appeal, assigning error.

Anderson & Howell and Garter & Garter for plaintiff.

Bernard, Williams & Wright for defendants, Ferguson Company and American Hnha Corporation.

Stacy, C. J.

It has been suggested in a number of cases that an order for examination, such as tbe plaintiff seeks, should not be issued except after careful consideration and scrutiny, which seems to have been made in tbe instant case. Bailey v. Matthews, 156 N. C., 78, 72 S. E., 92. We have found nothing on tbe record to indicate any effort on tbe part of tbe plaintiff to set a dragnet for tbe defendants, or to annoy or harass them. Bell v. Bank, 196 N. C., 233, 145 S. E., 241; Chesson v. Bank, 190 N. C., 187, 129 S. E., 403. But should tbis appear later on tbe examination, tbe parties will still be entitled to protection as suggested in Ward v. Martin, 175 N. C., 287, 95 S. E., 621.

A perusal of tbe record leaves us with tbe impression that tbe order was judiciously entered.

Affirmed.