Fox v. Yarborough, 225 N.C. 606 (1945)

Nov. 21, 1945 · Supreme Court of North Carolina

225 N.C. 606

AGNES CURRENCE FOX v. W. J. YARBOROUGH and ROSENA McKNIGHT, by Her Next Friend, E. S. McKNIGHT, v. W. J. YARBOROUGH and ROSEDIA REID v. W. J. YARBOROUGH.

(Filed 21 November, 1945.)

1. Pleadings § 27%—

After complaint is filed and before answer is filed, the provisions of the statutes, G. S., 1-569, and G. S., 1-570, are available to defendant for adverse examination of plaintiff to procure information to file answer.

2. Bill of Discovery §§ 1, 2: Pleadings § 27% —

The procedure, under G. S., 1-569, and G. S., 1-570, may be permitted to the plaintiff to procure information to frame complaint, or after answer is filed plaintiff may cause the defendant to be examined to procure evidence. And by parity the defendant may have the plaintiff examined to procure information to file answer, or after the answer is filed to procure evidence for the trial.

3. Bill of Discovery § 3—

When a proper order is made for examination of the adverse party under G. S., 1-569, and G. S., 1-570, appeal therefrom is premature and, ordinarily, will be dismissed.

Appeal by plaintiffs from Sink, J., 10 September, 1945. From MECKLENBURG.

Three civil actions for recovery of damages resulting from alleged actionable negligence of defendant — it being stipulated that all relate to the same collision between two automobiles, and that the ruling in either on this appeal shall affect all.

After tbe plaintiffs, respectively, bad filed tbeir complaints, and defendant bad obtained time to file answers, defendant filed a motion in each case before tbe clerk of Superior Court for an order for adverse examination of plaintiffs. Tbe motion was supported by affidavit in pertinent part as follows: “Tbat a summons bas been issued and a complaint bas been filed in tbis court in tbe above entitled action; tbat tbe defendant is without knowledge concerning certain of tbe facts alleged in tbe complaint and wbicb it is necessary for tbe defendant to bave in order properly to draft and file bis answer herein; tbat such information is not otherwise available to tbe defendant; tbat tbe said information is material and necessary and tbis application is made in good faith and tbat an examinaton of tbe plaintiff in tbis action as provided by tbe statute is necessary in order tbat tbe defendant may file bis answer and present bis defense herein.”

Thereupon, orders for adverse examination of plaintiffs, respectively, in “manner provided by tbe General Statutes of North Carolina” were entered on 18 June, 1945 — notice of wbicb was issued to and served upon plaintiffs, respectively, and tbeir attorneys.

Whereupon plaintiffs, respectively, through tbeir attorneys, demurred to, and moved to strike out said orders for adverse examination for tbat, “tbe plaintiffs have filed tbeir complaints in tbe above entitled actions, and bave fully set forth therein tbe facts wbicb constitute said causes of action, and that tbe defendant bas not filed answer in either of tbe above named cases, and therefore, as a matter of law, bas no right to adversely examine either of tbe above named plaintiffs before filing-answer.”

When on 10 September, 1945, tbe cases came on for bearing upon demurrers to and motions to strike out tbe orders for adverse examination, and after bearing arguments of counsel for plaintiffs and for defendant, tbe court entered order overruling tbe demurrer and denying motions to strike.

Plaintiffs, respectively, appeal therefrom to tbe Supreme Court and assign error.

Henry L. Strickland and John 6r. Carpenter for plaintiffs, appellants.

McDougle & Ervin for defendant, appellee.

Winborne, J.

Taking note of tbe fact tbat plaintiffs do not challenge tbe sufficiency of tbe showing made by defendant in support of Iris motions upon wbicb tbe orders in question are based, decision on this appeal is restricted to tbis question: After complaint is filed, and before answer is filed, are tbe provisions of tbe statute, G. S., 1-569, and G. S., 1-570, available to defendant for adverse examination of plaintiffs to procure information to file answer?

Tbe question is answered by tbe statute,, and in interpretative decisions of tbis Court.

Tbe statute provides that a party to an action may be examined as a witness by tbe adverse party. Tbe decisions declaring tbe right of a plaintiff to adversely examine a defendant for tbe purpose of obtaining information upon wbicb to file complaint are numerous. And tbis Court speaking to tbe subject bas said that tbe statute gives tbe right alike to plaintiff and defendant. Jones v. Guano Co., 180 N. C., 319, 104 S. E., 653, and Chesson v. Bank, 190 N. C., 187, 129 S. E., 403.

While in Jones v. Guano Co., supra, tbe right was denied to defendant upon other grounds, Clark, C. J., speaking to tbe subject, declares: “Tbis proceeding may be permitted to tbe plaintiff to procure information to frame complaint, Holt v. Finishing Co., 116 N. C., 480, or after answer is filed tbe plaintiff may cause tbe defendant to be examined to procure evidence. Helms v. Green, 105 N. C., 251; Vann v. Lawrence, 111 N. C., 32. And by parity tbe defendant may have the plaintiff examined to procure information to file answer, or after tbe answer is filed to procure evidence for tbe trial.” To like effect are expressions by Stacy, C. J., in Chesson v. Bank, supra.

Hence in tbe present case tbe motion was properly made and allowed.

However, when a proper order for such examination bas been made, appeal therefrom is premature and ordinarily will be dismissed. Ward v. Martin, 175 N. C., 287, 95 S. E., 621; Monroe v. Holder, 182 N. C., 79, 108 S. E., 359; Abbitt v. Gregory, 196 N. C., 9, 144 S. E., 297; Johnson v. Mills Co., 196 N. C., 93, 144 S. E., 534.

Nonetheless, we have in our-discretion elected to consider tbe appeal on its merit, Ward v. Martin, supra.

Affirmed.