Opinion
Filed 10 October 1962.
1. Appeal and Error 3 — An order for the examination of an adverse party pursuant to G.S. 1-568.11 is an interlocutory order which does not affect any substantial right and from which no appeal lies. G.S. 1-277.
2. Bill of Discovery 3 — Where the examination of an adverse party pursuant to informal consent of the parties has broken down upon disagreement as to the propriety of one of the questions asked on examination, a subsequent order for the examination of the party pursuant to G.S. 1-568.11 will not be held erroneous as subjecting the adverse party to an examination de novo when movant disclaims any intention to again subject the party to an examination with respect to the matter concerning which she has already testified.
APPEAL by original defendant from Walker, Special Judge, March 26, 1962, "B" Term of MECKLENBURG.
Warren C. Stack and James L. Cole for plaintiff appellee.
Carpenter, Webb Golding for defendant Williamson, appellant.
Kennedy, Covington, Lobdell Hickman and Edgar Love, III, for additional defendant Black, appellee.
On February 18, 1960, at a street intersection in Charlotte, N.C., there was a collision between an automobile, in which plaintiff was a passenger, operated by Charles L. Black (plaintiff's husband) and an automobile operated by Sue Wright Williamson. On August 3, 1961, plaintiff instituted this action against Mrs. Williamson, alleging the collision and plaintiff's injuries were proximately caused by the negligence of Mrs. Williamson. Answering, Mrs. Williamson denied negligence and alleged the collision and plaintiff's injuries were proximately caused by the negligence of Mr. Black. Mr. Black was joined as a defendant in respect of the cross action for contribution alleged by Mrs. Williamson. Answering, Mr. Black denied the essential allegations of Mrs. Williamson's cross complaint for contribution.
After the pleadings were filed, plaintiff's counsel proceeded to examine Mrs. Williamson adversely before Mrs. Rose M. Senn, a Notary Public, on January 19, 1962, in accordance with informal consent arrangements for such examination. Plaintiff had not obtained or applied for an order of the "judge or clerk" appointing a commissioner to hold such examination in accordance with G.S. 1-568.11. Plaintiff's counsel examined Mrs. Williamson as to what occurred on the occasion of the collision. The examination proceeded without incident until certain questions asked by plaintiff's counsel were challenged by Mrs. Williamson's counsel as relating to law rather than fact, e.g., this question: "And do you say that Mr. Black failed to yield the right of way to you?" When Mrs. Williamson, on advice of counsel, refused to answer the questions challenged as improper by her counsel, plaintiff's counsel stated that he withdrew his "stipulation" and the informal adverse examination ended.
On January 25, 1962, on plaintiff's application, Rachel B. Ingle, Assistant Clerk of the Superior Court of Mecklenburg County, signed an order for the adverse examination of Mrs. Williamson by plaintiff, appointed Mrs. Senn as Commissioner with full statutory powers, and designated the time (February 6, 1962) and place for such adverse examination. On January 30, 1962, Mrs. Williamson, through her counsel, moved to vacate said order of January 25, 1962, asserting, inter alia, her health would be placed in jeopardy by further examination, and praying, inter alia, "if the court determines that the plaintiff is entitled to further examination, the same be ordered upon written interrogatories." Thereupon, the said Assistant Clerk, by order of February 1, 1962, set aside so much of her order of January 25, 1962, as required Mrs. Williamson to appear for adverse examination on February 6, 1962, and set February 8, 1962, as the time for a hearing on Mrs. Williamson's said motion.
After hearing, J. Edward Stukes, Clerk of the Superior Court of Mecklenburg County, in his discretion, by order dated February 28, 1962, denied Mrs. Williamson's said motion, "reinstated in full force and effect" the said order of January 25, 1962, and set April 20, 1962, as the date for the adverse examination of Mrs. Williamson. Mrs. Williamson excepted to said order of February 28, 1962, and appealed therefrom to a judge of the superior court.
After hearing in the superior court, Judge Walker, in his discretion, by order dated March 29, 1962, affirmed the clerk's said order of February 28, 1962, and Mrs. Williamson gave notice of appeal to the Supreme Court.
On April 26, 1962, the said clerk, allowing Mrs. Williamson's motion therefor, changed the date for the adverse examination of Mrs. Williamson from April 20, 1962, to May 21, 1962, "in order that she may have opportunity to docket her appeal and seek further stay in the Supreme Court of North Carolina until a final determination of the Appeal." A petition filed by Mrs. Williamson in this Court for a stay of the clerk's order providing for her adverse examination was denied May 18, 1962.
It appears from exhibits attached to the motion to dismiss appeal filed in this Court by appellees (but not from the record filed by appellant herein) that the clerk, subsequent to his order of April 26, 1962, ordered that the adverse examination of Mrs. Williamson be deferred until disposition by this Court of appellant's purported appeal.
The purported appeal is from an interlocutory order of a superior court judge, affirming an order of the clerk entered in accordance with G.S. 1-568.11. It does not deprive appellant of a substantial right and no appeal lies therefrom. G.S. 1-277; Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669.
It is also noted that no exception or assignment or error appears in the record. The closest approximation is appellant's notice of appeal from Judge Walker's order. No error appears upon the face of the record.
Appellant asserts the order for her adverse examination provides for an examination de novo, thus subjecting her to a second examination concerning matters covered by her testimony on January 19, 1962. Appellees, in their brief, assert "(t)here is nothing in the order appealed from which purports to subject the defendant to re-examination `with respect to those matters concerning which she has already testified at length,'" and that they have no disposition to re-examine appellant concerning matters covered by her previous testimony. If, upon further adverse examination, appellant should refuse to answer any question propounded, whether she would be required to answer is determinable in accordance with G.S. 1-568.18 and G.S. 1-568.19. See Berry Brothers Corp. v. Adams-Millis Corp., 257 N.C. 263, 125 S.E.2d 577.
Appeal dismissed.