Summary
In Johnson v. Mills Co., 196 N.C. 93 (94), speaking to the subject, it is said: "When no pleadings have been filed, the plaintiff, by proper and sufficient affidavit, may apply to the court for an order of examination.
Summary of this case from Douglas v. BuchananOpinion
(Filed 26 September, 1928.)
Appeal and Error — Review of Interlocutory Orders — Premature Appeals — Dismissal.
An appeal from an order for the examination of the agents of the defendant corporation under C. S., 900, in order to obtain information upon which to base the complaint, is premature and will be dismissed.
APPEAL from an order made by Midyette, J., at Chambers. From VANCE.
M. C. Pearce and Thomas W. Ruffin for plaintiff.
Perry Kittrell and J. P. J. H. Zollicoffer for defendant.
Plaintiff instituted an action against the defendant, and after summons was served, filed an affidavit setting out a cause of action against the defendant for wrongful death and requesting the court to issue an order for the examination of certain alleged agents and employees of the defendant. The clerk of the Superior Court upon the affidavit issued an order directing the parties named in the affidavit to appear and be examined at the instance of the plaintiff. The defendant filed certain exceptions to the order of the clerk to the effect that the information sought by the plaintiff was not material and that the information desired by plaintiff was already available. From the order of the clerk the defendant appealed to the judge, who affirmed the order of the clerk, and found that the suit was regularly instituted, and that the proceeding for examination of agents and employees of defendant was sought in good faith and for the legitimate purpose of obtaining information from which to file the complaint. The judge further found "that the plaintiff has filed a duly verified affidavit setting forth sufficient facts to entitle her to examine the defendant for the purpose of obtaining information from which to file her complaint." Thereupon an order was made by the judge directing the parties named in the affidavit to appear and be examined before the clerk of the Superior Court. From this order the defendant appealed.
C. S., 900, provides that "where a corporation is a party to the action, this examination may be made of any of its officers or agents." When no pleadings have been filed the plaintiff by proper and sufficient affidavit may apply to the court for an order of examination. Bailey v. Matthews, 156 N.C. 78, 72 S.E. 92; Fields v. Coleman, 160 N.C. 11, 75 S.E. 1005; Chesson v. Bank, 190 N.C. 187, 129 S.E. 403. And when a proper order for such examination has been duly made, an appeal therefrom to the Supreme Court is premature and 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, ante, 9.
Appeal dismissed.