THE

OKLAHOMA

LAW JOURNAL

VOL. 4.

EDITED AND PUBLISHED MONTHLY BY

D. H. FERNANDES, GUTHRIE, OKLAHOMA

EXAMINATION OF PARTY BEFORE TRIAL.

In practice this subject is very important. It is important to all lawyers; but especielly so to those who defend or prosecute damage suits for personal injuries. Yet the subject should not be one of confusion in the mind with that of "Examination of the Person", or with that to "Perpetuate Testimony". It is a subject in itself-complete in right and in its effectiveness as now days recognized by statute in most of the states. It is true that the statute authorizing the examination of a party, suggested itself from the cumbersome and ancient practice of the "Bill of Discovery", but the exercise of the right to-day is pursuant to statute. The statutes granting the right are almost identical in every state. The statute prevailing on this subject and whose provisions have been copied in almost every Code state, reads as follows: "A party to an action may be examined as a witness concerning any matter stated in the pleading, at the instance of the adverse party, or of any

one of several adverse parties; and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify either at the trial, or conditionally, or upon commission. The proceedings herein provided take the place of a bill of discovery (Mason vs. Weston, 29 Ind. 561). The examination may be read at the trial although the party examined is present at the trial, thus differing from an examination perpetuating testimony or BENE ESSE. (48 Ind. 75). Parties examined in this proceeding, may be cross-examined in their own behalf and use such evidence elicited on cross-examination. (119 Ind. 244, 12 N. E. 523). However, parties thus examined before trial cannot be compelled to give the names of their witnesses or state the facts they expect to prove by them. Wabash etc. R. W. Co. vs. Morgan,

132 Ind. 430.

"The examination, instead of being had at the trial, may be had at any time before the trial, at the option of the party claiming it, before any officer authorized to take depositions, on a previous notice to the party to be examined and any other adverse party of at least five days, unless, for good cause shown, the court order otherwise. But the party to be examined before the trial shall not be compelled to attend in any other county than that of his residence."

The attendance of the party to be examined may be enforced, and the examination shall be taken and filed as a deposition in the cause, and may be read by the party taking it, at his option; but if not read, the party causing the examination shall pay the costs thereof.

The evidence of the party thus taken may be rebutted by adverse testimony. (122 Ind. 585).

"Any party refusing to attend and testify, as above provided, may be punished as for a contempt; and his complaint, answer, or reply may be stricken out." Par

ties may refuse to answer questions not concerning the matters in issue, and their pleadings cannot be stricken out for such refusal. (88 Ind. 305).

While the writer has copied above the statute from the Indiana Code, and cited the decisions also of that state upon its provisions by reason of convenience and familiarity with it; that of all other states is similar. For the benefit of the reader, however, we call attention to the fact that in a recent case the Supreme Court of Missouri in State ex rel. Crow vs. Continental Tobacco Company, 177 Mo. 1; 75 S. W. 737, it not only set out the full statute, but a most extended discussion of all its provisions.

The object of the statute was to abolish, not only the form, but also the substance of the old bill of discovery, and to enable the party to obtain the benefits of the bill, and also a more ample remedy by taking the deposition of the adverse party as a witness in the case upon all questions involved in the issues. 83 Wis. 441, 53 N. W. 689.

Although an applicant's petition or request for an oral examination of adverse party in advance of trial disclose a case giving the Judge power to act, his action thereon is purely a discretionary one, (In re Porter Screen Manuf. Co., 70 App.Div. 329, 75 N. Y. Supp. 286) and where the Judge can, from the nature of the action and the facts disclosed, see that the examination is not necessary, that it is sought merely for annoyance or delay, he may, in his discretion, deny the application.. (106 N.Y. 272, 12 N.E. 613). On March, 1892 an act was passed by Congress similar in provisions as the state statutes and applicable to cases pending in the Federal Courts. Smith vs. Northern Pac. R. Co., 110 Fed. 341; 118 Fed. 653. The general rule is that the right to examine the adverse party is equally applicable whether the action is at law or in equity; and also