Opinion
February 9, 1961 —
March 7, 1961.
APPEAL from an order of the municipal court of Brown county, circuit court branch: RAYMOND J. RAHR, Judge. Affirmed.
For the appellant there was a brief by Robert P. Stebbins, and oral argument by Mr. Stebbins and by Mr. William Duveneck, guardian ad litem, both of Green Bay.
For the respondent there was a brief by Everson, Whitney, O'Melia Everson of Green Bay, and oral argument by John C. Whitney.
Proceeding to perpetuate the testimony of one Harold Sigl. The application was by William Duveneck and was by means of an affidavit as follows:
"William Duveneck being duly sworn says that he is the duly appointed and qualified guardian ad litem for Robert Hart, an infant under the age of fourteen years, and was appointed as such by this court for purposes of prosecuting a claim for personal injuries on behalf of Robert Hart against those responsible therefor; that said claim for personal injuries arose out of an automobile accident occurring on October 18, 1958, in the city of De Pere, Brown county, Wisconsin, as the result of a collision between an automobile owned and operated by one Donald Sigl, brother of said Harold Sigl, and a bicycle upon which said Robert Hart was riding; that said accident was supposedly caused by the causal negligence of Donald Sigl at the time and place above stated.
"That the name and residence of all persons who are interested or supposed to be interested in the applicant's claim are: Donald Sigl, 1700 Norwood Avenue, Green Bay, Wis.
"That the said Harold Sigl, Highway 57, De Pere, Brown county, Wisconsin, knows certain facts concerning affiant's claim, which affiant deems material and essential to said claim, and affiant therefore desires to perpetuate the evidence the said Harold Sigl, and requests that his deposition be taken, as provided by law for the perpetuation of testimony."
The application was filed with Robert H. Flatley, a court commissioner in and for said county. A notice was signed by the court commissioner that the deposition of Harold Sigl would be taken at a time and place therein specified for the purpose of perpetuating his testimony concerning the automobile accident involving Donald Sigl and Robert Hart on October 18, 1958. The date of hearing was fixed as July 1, 1960. A subpoena was also issued by the court commissioner directing said Harold Sigl to appear before him on July 1, 1960.
The record indicates that the witness, Harold Sigl, did not appear in person but appeared by attorney. The matter was adjourned until July 8, 1960. Again the witness was absent but appeared by his attorney who contended that the applicant had no right to subpoena Harold Sigl for the purpose stated in the application because it did not appear therefrom that there is any cause existing for the perpetuation of the testimony, there being no indication that the witness intends to leave the state, is in poor health, or for other foreseeable reasons will not be available to testify in the event of any litigation that may be commenced. It was contended further that the applicant was attempting to expand the statute far beyond its scope.
The court commissioner then certified the record to the municipal court of Brown county, circuit court branch, for directions. Briefs were filed by the attorney for the applicant and by the attorney for Harold Sigl. After considering the same, the trial court filed a memorandum opinion and on September 19, 1960, an order was entered directing the court commissioner to sustain the objection of counsel for Harold Sigl to the proceeding. The applicant appealed.
The application was made under the provisions of sec. 326.27, Stats. It is the contention of Sigl that all of the provisions of ch. 326, Stats., with reference to the taking of depositions must be read together and that one of the grounds stated in sec. 326.07 must be established before the deposition of a witness not a party to an action can be taken. The applicant, on the other hand, states that under old rules of equity practice reasons had to be given for the perpetuation of testimony but that the adoption of the statute abolished certain rules and that sec. 326.27 is now complete in and of itself without reference to any other section except that notice is to be given in the manner prescribed by sec. 326.09. The applicant further argues that statutes involving procedure should be given a liberal construction to promote the effective administration of justice, and there are many cases in which this court has so stated.
The trial court held that sec. 326.27, Stats., is not complete in and of itself but that to entitle one to perpetuate the testimony of a prospective witness not a party to a proposed action under the provisions thereof, the application should allege as grounds therefor one of the reasons stated in sec. 326.07. We agree.
It is apparent that the applicant is attempting to use the statute as a means of conducting an adverse examination of one not a party nor the agent or servant of a party to a prospective action. In Sova v. Ries, 226 Wis. 53, 276 N.W. 111, we held that the type of special proceeding which is authorized by sec. 326.29, Stats., does not constitute an action, and a prospective witness is not to be considered a party to some future action who can be subjected to an adverse examination. That statement is equally true as to sec. 326.27.
In oral argument the applicant referred to Rule 26, Federal Rules of Civil Procedure, and indicated that we should construe sec. 326.27, Stats., in harmony with that federal rule. In 1949 the advisory committee on pleading, practice and procedure recommended that this court create by rule sec. 326.125, Stats., bearing the title "Depositions for Discovery." The suggested draft of that rule followed the federal rule to a great extent. Two public hearings were held thereon in which several persons appeared in favor of the proposed rule and several persons appeared against the proposed rule. The rule was not adopted. The consensus of opinion then was that no provisions of ch. 326, Stats., could be construed to provide for a discovery proceeding and that a rule or statute was necessary to accomplish that purpose. It is true today. We cannot, under the guise of liberal construction, supply something that is not provided in the statute or rule.
Since no valid reason for the taking of the deposition appeared in the application, the trial court was correct in directing a dismissal of the proceeding.
By the Court. — Order affirmed.