1 Reported in 246 N.W. 478. Motion to dismiss an appeal from an order granting in part and denying in part an inspection of books and papers in the possession of one of the parties.
G. S. 1923 (2 Mason, 1927) § 9886, provides that the court before which an action is pending "may order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any book, document, or paper in his possession or under his control, containing evidence relating to the merits of the case." *Page 633
Is an order granting or denying such a motion an appealable order? It is urged that such an order is a provisional remedy and appealable under § 9498(2) of the statutes.
Discovery under the common law was by bill in equity for discovery of facts residing in the knowledge of the defendant named in the bill, or discovery and inspection of deeds, writings, or other things in his custody, but seeking no relief other than such discovery. It was a separate action or proceeding wherein the one seeking discovery was plaintiff and the other party or parties to a pending or contemplated action at law were defendants. Interrogatories were included in or attached to the bill, and the defendant or defendants therein were required to answer them.
Our statutes do not provide any such proceeding. The order for an inspection of books and documents is a mere order of the court in a pending action. The statute does not in terms require any formal application or notice. The order may apparently be made during or before trial on notice or ex parte. An appeal from such an order is likely to result in serious delay in the prosecution of the action. If held a provisional remedy, the granting of such inspection will prevent the dismissal of the suit by the plaintiff before trial. G. S. 1923 (2 Mason, 1927) § 9322(1). In Harris v. Richardson, 92 Minn. 353, 100 N.W. 92, there was an appeal from an order granting inspection of documents. The appealability of the order was not raised in this court. The opinion states, in substance, that if the appeal had been challenged the court would hold that the order could not be reviewed on appeal; that the order was neither a provisional remedy nor an order affecting a substantial right, but rather an interlocutory direction occurring during the trial, which should not justify a suspension of the proceeding pending review by this court. That holding has stood unchallenged since 1904. In State ex rel. Seattle G. C. Co. v. Superior Court,56 Wash. 649, 106 P. 150, 28 L.R.A.(N.S.) 516, the court directly passed upon the question and held that such an order was interlocutory, not appealable, and reviewable only on appeal from the final judgment in the case. Under our practice it could also be reviewed on appeal from an order denying a new trial *Page 634
Provisional remedies have been enumerated as including arrest, attachment, bail, claim and delivery, injunction, ne exeat, and receivership.
Inspection of books and papers, under the Wisconsin statutes, has been held in that state to be a provisional remedy. The Wisconsin statute goes farther than ours and permits examination of an adverse party as a witness, practically the same as the common law suit for discovery. See Ellinger v. Equitable L. A. Society, 125 Wis. 643, 104 N.W. 811.
The case of Alexander v. U.S. 201 U.S. 117, 26 S. Ct. 356,50 L. ed. 686, if we read it right, holds that all order for production of books and papers and for the examination of a witness is an interlocutory order and not appealable; but that if a witness refuses to obey such an order and is adjudged guilty of contempt, he may then appeal from the judgment of conviction.
We find nothing in subds. 3, 5, or 7 of § 9498 of the statutes making the order here in question appealable.
The order was not an appealable order, and the appeal is dismissed.