Sudderth v. Simpson, 224 N.C. 181 (1944)

March 29, 1944 · Supreme Court of North Carolina

224 N.C. 181

SAM SUDDERTH et al. v. FRANCES A. SIMPSON et al.

(Filed 29 March, 1944.)

Bill of Discovery §§ 3, 8: Appeal and Error § 37b—

Upon verified application for examination of an adverse party, under G. S., 1-569-570, the affidavit complying witli the requirements of the statutes, an appeal from an order granting the application is premature and will be dismissed.

Appeal by defendants from Rousseau, J., at September Term; 1943, of Catawba.

Civil action pending in the Superior Court of Catawba County.

The plaintiffs, desiring to elicit information upon which to draft complaint, filed motion and affidavit under Gr. S., 1-569-570 (C. S., 900-901), setting out that from 7 January, 1937, to 9 April, 1943, defendant Simpson held a certain house and lot in trust for the use and benefit of plaintiffs; “that prior thereto and during'said period, plaintiffs regularly paid to defendant, Frances A. Simpson, substantial sums of money” which she agreed to apply on certain loans procured from building and loan associations, first “by plaintiffs in their own names” and later by said defendant for their use and benefit; that on 9 April, 1943, without notice to or consent of plaintiffs, defendants Simpson conveyed legal title to said house and lot to defendants Waggoner, and that defendants refuse to advise plaintiffs the consideration for such transfer, in spite of plaintiffs’ requests that they be so advised, although defendant Mrs. Simpson bas stated defendants 'Waggoner bold tbe property subject to tbe terms of tbe trust; that on or about 9 April, 1943, when she conveyed tbe property to defendants "Waggoner, tbe feme defendant Simpson procured from plaintiffs, who are uneducated persons and who kept no other records, all of tbe receipts she bad given them from time to time for money paid by them to her to be applied upon tbe loans, for tbe stated purpose of checking them against her books of account, and thereafter refused to return tbe receipts to plaintiff, “notwithstanding repeated demands made upon her to do so”; that plaintiffs have no record of their transactions bad with tbe feme defendant Simpson, other than said receipts, and are therefore unable to advise their counsel as to tbe status of tbe trust account, and that their application for an order to examine tbe defendants is made in good faith.

In tbe order allowing tbe motion, tbe court finds “that tbe plaintiffs have a cause of action against tbe defendants, tbe nature of which is made sufficiently to appear; that information material to tbe issues involved is peculiarly and solely within tbe knowledge and possession of tbe defendants, and is by them withheld from tbe plaintiffs; that without such information plaintiffs are unable to frame their complaint herein, and that plaintiffs’ application for examination of tbe defendants is made in good faith and not for tbe purpose of harassing tbe defendants.”

Tbe defendants Simpson except to tbe order and finding, and appeal.

O. W. Bagby and John W. Aiken for plaintiffs, appellees.

Theodore F. Cummings and D. M. McComb, Jr., for defendants, appellants.

Stacy, C. J.

Tbe question for determination is tbe sufficiency of tbe affidavit to support tbe order of examination.

It is conceded that as a condition precedent to an order for examination under G-. S., 1-569-510, tbe verified application should disclose: (1) Tbe nature of tbe cause of action; (2) that tbe information sought is material and necessary, and not otherwise accessible to tbe applicant; and (3) that tbe application is meritorious and made in good faith. Washington v. Bus, Inc., 219 N. C., 856, 15 S. E. (2d), 372; Knight v. Little, 217 N. C., 681, 9 S. E. (2d), 377.

Here, it appears from tbe facts sets out in tbe affidavit, that plaintiffs are entitled to an accounting of trust funds; that tbe information sought is essential and not otherwise accessible, and that tbe application is meri; torious and made in good faith. This would seem to meet tbe requirements of tbe statute. Smith v. Wooding, 177 N. C., 546, 94 S. E., 404.

Moreover, it would seem that no barm could come to tbe defendants in requiring them to disclose matters in connection with their trusteeship. This circumstance distinguishes the present case from those cited and relied upon by defendants.

The appeal will be dismissed on authority of Abbitt v. Gregory, 196 N. C., 9, 144 S. E., 297; Monroe v. Holder, 182 N. C., 79, 108 S. E., 359; Ward v. Martin, 175 N. C., 287, 95 S. E., 621.

Appeal dismissed.