(dissenting).
I do not agree that section 93-2301-6 gives the legal reason for perpetuating testimony. It simply provides when the evidence becomes admissible if and when a trial be had between the expectant parties.
Section 93-2301-2, R. C. M. 1947, sets forth what must be alleged in the petition in order to obtain an order for the perpetuation of testimony. The petition here complied with this statute.
That being so, there was nothing left for the judge to do but to make the order which he did. State ex rel. Holcomb v. District Court, 54 Mont. 574, 172 Pac. 329; State ex rel. Smith v. District Court, 112 Mont. 506, 118 Pac. (2d) 141.
I do not subscribe to the conclusion as stated in the majority opinion that proceedings under the statute may not be taken for the purpose of discovering or ascertaining facts or evidence which may be helpful to a party’s cause. Certainly a petitioner who expects to be a party to an action would have no purpose in proceeding under the statute to discover or ascertain facts or evidence which may be harmful to his contemplated law suit. I think the very purpose of the statute is to enable the petitioner to *453ascertain and discover facts which would enable him to prepare his complaint the more intelligently and to minimize the element of surprise at the trial.
Were he already in possession of all the facts there would be no need to perpetuate testimony. All that he would then have to do would be to commence his action and then take the deposition of the witnesses under sections 93-1801-2 and 93-1801-3.
The practice of taking depositions before action has become so popular that it has been adopted by Congress as a part of the Federal Rules of Practice in practically the same language as our statute and under the heading, ‘1 Depositions and Discovery. ’ ’ See Rules 26 and 27 of the Rules of Civil Procedure for District Courts, 28 U. S. C. A.
Whether the application is made in good faith for the purpose of obtaining, preserving and using material testimony is not before us here. If it were I would say that we, like the judge who granted the order, are concluded by the allegations of the petitioner in the absence of any showing or claim made to the contrary as here.
I agree that Mr. Neilson may not be required to give testimony upon which he could be charged, tried and found guilty of a felony. But that does not nullify the order to perpetuate his testimony. Neilson’s remedy is to claim his privilege when questioned. Likewise I think the subpoena duces tecum was proper. It may be too broad since it calls for copies of income tax returns, which are at least semi-confidential, but that does not affect the validity of the subpoena in other respects. Records showing the wealth and pecuniary ability of the expectant defendant are relevant and material when exemplary damages are sought. Johnson v. Horn, 86 Mont. 314, 283 Pac. 427. The wealth and pecuniary ability at the time of the trial are of course the important factors, yet evidence of these facts at the time of the taking of the deposition is relevant and material as some proof of those elements at the time of trial.
I think the order made by the respondent court and judge and *454the subpoena cluces tecum are proper and that the writ applied for here should be denied.